USA V Zach Scruggs: Motion To Reconsider Order Disallowing Discovery

Case 3:07-cr-00192-NBB-SAA Document 319 Filed 03/02/11 Page 1 of 13
UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA
v. CRIMINAL CASE NO. 3:07CR192-b-a
DAVID ZACHARY SCRUGGS
MOTION TO RECONSIDER ORDER DISALLOWING DISCOVERY
On February 14, 2011 the Petitioner moved to conduct limited discovery in this case,
asking the Government merely to admit or deny certain facts, and to explain their basis for doing
so, providing any documents or other things that supported their contentions. D.E., 316. The
purpose of this request was an attempt to streamline the hearing this Court ordered. The
Government indicated no objection to the Motion, and the Petitioner had no opportunity to reply
to whatever concerns may have existed. Nonetheless, on February 16, 2011, this Honorable
Court denied the motion. D.E. 317. Petitioner respectfully moves for reconsideration, believing
that the Petitioner’s earlier request did not adequately make clear to the Court that issues not
previously a part of this case were now at the fore or that discovery would focus the hearing in
an effort to promote an efficient use of the Court’s time.
The Court’s reasons for denying the requested discovery were stated succinctly:
Having found that the defendant had adequate time to conduct extensive
discovery prior to his trial date and finding further that the defendant, through
counsel, represented to the court on January 16, 2008, that he was satisfied with
the resolution of discovery issues at that time, and that the defendant made no
additional motions to compel discovery after that date, the court is of the opinion
that no further discovery should be necessary in this case, and therefore, none
shall be authorized. As the defendant acknowledges, leave of court is required for
discovery under Rule 6 of the Rules Governing Section 2255 Proceedings for the
United States District Courts, and the decision to grant said leave is entirely
within the discretion of the court.
Id., at 1-2.
1
I. The Court’s Duty to Allow Discovery
In its Order denying discovery, this Honorable Court emphasized that the rules provide
discretion about whether to allow discovery in §2255 petitions. Id. Indeed, a measure of wise
discretion is required and contemplated by the rules precisely because most § 2255’s are denied
without the necessity of a hearing, much less discovery. But, as the Court has already
acknowledged by ordering a hearing, this is not one of those cases. The Petition raises very real
issues including issues that have not been previously explored.
The Supreme Court has said that, “where specific allegations before the court show
reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and
procedures for an adequate inquiry.’ Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (ellipsis in
original; quoting Harris v. Nelson, 394 U.S. 286, 300 (1969))(emphasis added). The Fifth
Circuit has warned that, “While the district court generally has discretion to grant or deny
discovery requests under Rule 6, a court's blanket denial of discovery is an abuse of discretion if
discovery is ‘indispensable to a fair, rounded, development of the material facts.’” East v. Scott,
55 F.3d 996, 1001 (5th Cir., 1995) (quoting Coleman v. Zant, 708 F.2d 541, 547 (11th Cir.1983)
(quoting Townsend v. Sain, 372 U.S. 293, 322 (1963))(emphasis added).
When district courts fail to meet their duties in this regard, the courts of appeal routinely
remand cases with instructions for them to do so. See e.g., East, 44 F.3d at 1001-1002 (“The
district court denied East's request to depose these witnesses and examine their files. Because
access to these witnesses and their files is necessary to fully develop the facts needed to consider
East's claim, we conclude that the district court abused its discretion in denying East's discovery
requests.”); Drake v. Portuondo, 321 F.3d 338, 345 (2nd Cir. 2003) (“We conclude that Drake
2
should be permitted to develop the record further. …We think that Drake has made a showing of
good cause here, and that the record does provide a sufficient basis to remand this case to the
district court for limited discovery on the circumstances surrounding Walter's perjured
testimony.”).
II. The Insufficiency of Prior Criminal Discovery in this 2255
The Court relies on the fact that discovery was allowed in the criminal case for
disallowing discovery now. Respectfully, the Court’s concern that “the defendant, through
counsel, represented to the court on January 16, 2008, that he was satisfied with the resolution of
discovery issues at that time” Order, D.E. 317 at 1, is a bit more broad than the record shows.
At that hearing (shortly after Mr. Farese was excused for his undisclosed dual representation of
Joey Langston and Petitioner) Petitioner’s counsel Mr. Todd Graves told the Court: “I was
contacted about this case less than a week ago. There are very legitimate reasons why Mr.
Scruggs changed attorneys. We need some time to delve into this. We haven't looked at any of
the discovery[.]” Exh. A, Motion Hearing Tx., 1/16/2008 at 45:25-46:3. Even later, when the
case approached trial, the discovery allowed to Petitioner was extremely limited. For example,
on February 20, 2008, when Mr. Balducci testified, the Petitioner’s counsel was not allowed to
question him about his misrepresentations to the grand jury, and whether he then implicated the
Petitioner at all, once those misrepresentations were corrected. See Exh. B, Motion Hearing Tx.,
2/20/2008 at 22:1-7 (“I am not going to hear each lawyer from each defendant.”). See also id., at
95:18-20 (refusing to hear argument from Todd Graves, “specifically about [his] client,” the
3
Petitioner.) Thus, in the criminal proceedings, the factual record was skeletal, with many gaping
holes that remain to this day.1
Even with these lacunae, it bears emphasis that after all the facts were put on the table, it
became clear to the Government that Petitioner was innocent of any involvement in bribery, and
those charges were voluntarily dismissed. At that time, the Government repeatedly represented
to this Court orally and in the Factual Basis that “all the facts and circumstances” of this
Petitioner’s conduct amounted to mere earwigging, not bribery. Plea Hearing Tr. 3/21/208 at 8
(Mr. Sanders), Sentencing Hearing Tr., 7/2/08 at 5 (Mr. Dawson). The purpose of much of the
Petitioner’s propounded discovery is to discern what factual basis exists for the Government now
to say the opposite.2
More importantly, even if there was extensive discovery in 2008, this proceeding raises
new issues that were not known then, and shifts the burden of proof.3 When Petitioner made a
plea to misprision of honest services fraud, it simply was not a material fact for this Court to
1
For example, on November 19, 2007, the Government sent Timothy Balducci into the Scruggs Law Firm, and
during that visit, the Petitioner explicitly asked Balducci when he would have the jury selection work done on the
upcoming Katrina case, the very case that the Government contended was a sham. To this day, the Government has
never turned over the tape recordings or FBI reports for that exculpatory conversation, which would show that
Petitioner had no knowledge of any bribe or cover-up. Rather than such contemporaneous documentary records, the
Government would apparently prefer to rely upon the unreliable testimony of Timothy Balducci. When Balducci
has testified about meetings for which the Government has produced the tapes, Mr. Balducci has repeatedly shown a
willingness to stretch the truth, in ways that can be documented. For example, in the grand jury, Mr. Balducci said
that on November 1, 2007, he explicitly told Zach Scruggs about a “$10,000” payment to Judge Lackey and said
that Zach Scruggs responded that it was “not a problem.” In fact, the tape makes it clear that the conversation
involved no discussion of money, and Zach Scruggs never assented to such a payment. See D.E. 303 at 28 n15, and
Request for Admission No. 24.
2
See Request for Admission Nos. 15, 19, 21, and 22.
3
See Motion for Discovery, D.E. 316 at 2-3 (citing Bousley v. U.S., 523 U.S. 614, 621 (1998)). In its two Orders,
the Court has not addressed the question of which party bears the burden of proof at the hearing, even though it was
raised in the Petition, the Reply, and the Motion for Discovery. Still, Defendant reasserts his claim that the burden
that Bousley purports to place on the movant is unconstitutional, and that it is in fact inapplicable in cases like this in
which the federal court had no jurisdiction over the Indictment or pleas in this case. See Reply Memo., D.E. 311 at
4, n.4 (citing United States v. Meacham, 626 F.2d 503, 509-510 (5th Cir., 1980)). Still, until this Court says
otherwise, Defendant must proceed under the assumption that he will bear the burden of proof at any hearing.
4
determine whether Petitioner participated in a bribery scheme, since mere knowledge of
earwigging seemed to suffice for the honest services fraud statute. At the sentencing hearing,
this Court so acknowledged, saying that “whether it was for money or whatever else is really
immaterial; it was a corrupt order.” Sentencing Hearing Tr., 7/2/08 at 7:23-24 (emphasis
added). After Skilling v. U.S., what the Court once considered immaterial is now material.
Thus, several of the requested admissions and interrogatories are focused precisely on the bribery
question, which simply did not exist at the time of Petitioner’s plea, because all bribery charges
had been dismissed for lack of evidence.4
III. The Revelation of New Evidence Since Petitioner’s Plea
The fact that the Petitioner had discovery in the criminal case in 2008 is further
insufficient for the present inquiry because the Government’s misrepresentation to this Court
about Joey Langston’s proposed testimony against Petitioner was not revealed until May 2010,
long after the criminal case was closed. See Petition, D.E. 303 at 8-10 (laying out this
chronology, based on 2010 affidavits from current and former prosecutors). It goes without
saying that Petitioner could not conduct discovery on prosecutorial misconduct that he did not
yet know existed, and in fact no such discovery was conducted. Only now do we have Mr.
Langston, Mr. Farese, and a former prosecutor, Judge Sanders, swearing under oath that Joey
Langston never implicated Petitioner, but instead affirmatively exculpated him. These new facts
strongly suggest that the Government’s representation to this Court was not only false, but that
the Government knew or should have known that the representation was false when it spoke to
the Court. Id. At the very least, it is quite clear that someone in the prosecutor’s office knew
4
See Requests for Admission Nos. 3, 4, 5, 6, 8, 9, 10, 15, 16, 17, 18, 20, 21, 22, and 24.
5
that the representation was false at the time this Court and the Petitioner were relying upon it.
And no one corrected the record.
Frankly, this case provides a patent example of the problematic nature of the limited
discovery allowed by the criminal rules. In the 2008 criminal proceedings, the Government was
never required to turn over a 302 Report for Joey Langston, since he did not testify in open court,
and of course Petitioner had no opportunity to depose him or otherwise put him on the record.
As long as Mr. Langston’s true testimony remained shrouded in secrecy, the Government was
free to make false representations to the Petitioner and this Court that Mr. Langston would
“implicate” Petitioner in another case altogether. See Petition, D.E. 303 at 4. ’Trust us,’ the
Government said, and the Petitioner and the Court both relied upon such representations. The
Government has not proven anything in this case, except for the fact that trust is easily betrayed.
Now, the Government admits that it “may have miscommunicated” with Joey Langston.
Opposition, D.E. 309 at 8. This is perhaps as close as the Government can come to admitting
that the Court relied upon it for inaccurate information. But in any event, Petitioner is entitled to
know what the Government knew when, and whether the Government now admits that the Court
had false information. Presumably, the Court will want to be fully informed on this question as it
was a critical fulcrum for the Court’s 404(b) ruling against Petitioner. It was also the "fulcrum"
for the Court's denial of Petitioner’s Motion for Severance and for the Court’s decision to require
an anonymous jury. Further, it was a critical fulcrum in the Petitioner’s assessment of what
faced him in this Court. The Fifth Circuit will likewise need such information to determine
whether the Government’s false statement, and repeated failure to correct the record, were
6
benign, negligent, reckless, or intentional. The requested discovery was targeted to address these
questions.5
Similarly, in 2008, there was no opportunity to conduct criminal discovery about the
Government’s month-long secret plea negotiations with Petitioner’s then attorney Tony Farese to
procure testimony from Joey Langston that it knew could be adverse and prejudicial to
Petitioner, creating a disqualifiable ethical conflict. At that time, neither the Government nor
Mr. Farese notified the Petitioner or the Court of its secret negotiations or its knowledge of the
conflict. See Petition, D.E. 303 at 32-33. When those secret negotiations culminated in a
publicized plea deal for Mr. Langston on January 7, 2008, it then became “obvious” to this Court
(and the Petitioner) for the first time that Mr. Farese’s continued dual-representation presented
insurmountable ethical problems.6
The secret, month-long plea negotiations leading up to that point, and Mr. Farese’s
central role in procuring Mr. Langston’s cooperation and adverse testimony despite his
representation of Petitioner, were only revealed in Tom Dawson’s attempt to profit personally
from his role as a prosecutor in this case. In December, 2009, Dawson published Kings of Tort,
5
See Requests for Admission Nos. 12, 13, 18, 19, 23, and Interrogatories 12, 13, 19, 20 and 21.
6
See Order D.E. 86 (denying a motion for reconsideration for Ken Coghlan to represent Richard Scruggs after
having previously represented Steve Patterson, writing that: “A situation similar to the Coghlan matter developed
when attorney Anthony Farese, who represented defendant Zachary Scruggs, took on the representation of attorney
Joey Langston which Langston pleaded guilty to another charge of judicial bribery and agreed to testify in the
present case against defendant Richard Scruggs about Langston's knowledge of alleged prior similar bad acts by
Scruggs as provided for by Rule 404(b) or the Federal Rules of Evidence. The Langston plea was initially under
seal; thus, no record of the matter was before the undersigned district judge when Mr. Farese moved to withdraw as
counsel for Zachary Scruggs. The Court denied the motion because to rule otherwise would have left Scruggs
without re presentation at that time. When the Langston guilty plea and agreement to testify against Scruggs were
made public, it became obvious that Mr. Farese could not continue in his representation of both Langston and
Zachary Scruggs, even though Zachary Scruggs had signed a waiver of conflict of interest. Mr. Farese then filed a
second motion to withdraw, and the court granted the motion excusing Mr. Farese from any further representation of
Scruggs.”) (emphasis added). Anyone who knew of the dual representation would have found it “obvious” that Mr.
Farese could not represent Langston too, but for several weeks, neither Petitioner nor the Court knew he was doing
so. By the way, this Order, D.E. 86, appears to have been removed from the PACER/ECF system, and there does
not appear to be a notation or Court order explaining why. Petitioner is happy to provide a copy to the Court if
necessary.
7
which revealed that as early as December 10, 2007, the Government expressly informed Joey
Langston and Tony Farese (Petitioner’s attorney) that Mr. Langston was a “target” in the
Delaughter case, and despite that knowledge and the ethical conflict it created, they all began
secret negotiations together. See Petition Exh. C., at 181-192. As Mr. Dawson describes in his
book, from that moment, the Government “planned to plant the seeds of cooperation in hopes
that [Langston] would ultimately plead guilty and testify” adversely to the Scruggs defendants.
Id. Mr. Dawson explains that in that December 10, 2007 encounter, the prosecutors and Mr.
Farese immediately understood that Langston’s status as a target in the Delaughter case created a
conflict of interest for Mr. Langston continuing as an attorney for Dick Scruggs in the Lackey
case, which obviously created the same conflict for Mr. Farese representing both Petitioner and
Langston. Id., at 181. Mr. Dawson’s book shows this inside information about early
negotiations, revealing that from the beginning, the Government willfully exploited Mr. Farese’s
conflict of interests, undermining Petitioner’s constitutionally protected right to effective
counsel.
Mr. Dawson’s 2009 book further explains that the Government proceeded with nearly a
month of secret negotiations, using Mr. Farese to secure Mr. Langston’s plea and agreement to
cooperate with the Government, all without notifying the Petitioner, the other defendants, the
other joint defense counsel members, or the Court about the conflict the Government had
created. See Exh. C hereto, Affidavit of Lead Counsel John Keker (stating that he had no
knowledge that Farese was representing Langston prior to January 7). Mr. Dawson’s 2009 book
revealed that these secret negotiations came to a head on Friday, January 4, 2008, when the
Government gave Mr. Langston an ultimatum, which raised the stakes. Mr. Dawson explains
that:
8
Langston and Farese made a desperate pitch for immunity, offering to testify
against Scruggs in the Delaughter case. They argued that the value of Langston’s
testimony would cause Scruggs’s collapse in both cases, resulting in guilty pleas.
The specter of Scruggs’s own lawyer testifying against him would be
insurmountable.
Petition Exh. C., at 188.
Mr. Dawson’s book goes on to reveal that first thing on the morning of January 7, 2008,
the Government, Mr. Langston, and Mr. Farese quickly concluded the prejudicial plea deal that
had been in the works for almost a month. See Petition Exh. C at 191. Within minutes after the
plea deal had been reached, Mr. Farese went straight to Petitioner’s office and for the first time
asked him to execute a written “informed consent” to represent Mr. Langston, telling him only
that Langston’s Washington, D.C. lawyers asked for the waiver so he [Farese] could help them
locally comply with previously served grand jury document subpoenas. Mr. Farese procured this
signature without informing Petitioner of the negotiations or Mr. Langston’s plea, or even his
criminal jeopardy at all. Early that same afternoon, Mr. Farese then appeared in Judge Mike
Mills’ Court on behalf of Mr. Langston, with the fraudulently induced waiver obtained from
Petitioner in hand, and entered a plea for Mr. Langston. That plea revealed only the tip of the
iceberg.
Only with the publication of these facts in 2009 did Petitioner Zachary Scruggs learn that
the Government induced his own attorney to procure a witness that the Government assured the
Court and Petitioner would testify against Zachary Scruggs, a witness that created an
“insurmountable” challenge to his defense, and undermined his rights to effective counsel and
fair trial. The purpose of the requested discovery is to probe those murky depths, to determine
whether the Government affirms or denies those facts provided by Mr. Dawson.7 If the
7
See Request for Admission Nos. 14 and 25, Interrogatory No. 14, and Request for Documents Nos. 14, 20, and 21.
9
Government now concedes that Mr. Dawson’s account is true, then these questions can be
dispatched quite quickly.
Given that the Government’s secrecy -- about Mr. Langston’s true testimony and about
Mr. Farese’s dual representation -- is the very problem underlying the Petition, the Court’s order
denying discovery creates a Catch-22. Petitioner alleges that he was prejudiced by secret
information and secret negotiations, but the Court says he cannot discover the predicate facts
about those secrets, because he previously had the opportunity to undertake discovery about
those secrets when they were still secret. The discovery allowed in §2255 cases is designed
precisely to resolve this sort of problem. See Conaway v. Polk, 453 F.3d 567, 584 (4th Cir.,
2006) (describing this as “a classic catch-22”).
III. This Court Can Permit the Discovery of the Truth.
This Court’s order denying discovery serves to perpetuate the dangerous business of
relying upon the Government’s naked and uncheckable representations, allowing this case to
lurch towards a hearing based on rhetoric rather than facts. If limited to the evidentiary record as
adduced by the Petitioner and the Government in their briefs, there could be little dispute that the
Petitioner is actually innocent of bribery, a point that the Government acknowledged when they
dismissed all bribery charges in 2008 and again in 2010 when they felt the need to supplement
the record with new unsubstantiated (and mostly irrelevant) representations.
Rather than providing admissible evidence in their Opposition to the §2255 Petition, the
Government merely offers more unsubstantiated representations. The Government now
represents, without substantiation, that its false statement to the Court “may” have been due to a
“miscommunication.” See Opposition, D.E. 309. ‘Trust us’, the Government says (even though
Joey Langston and Judge Sanders have already testified under oath that the Government knew
10
the truth all along). The Government represents that there is an email regarding the Wilson case
that is somehow damning to Petitioner, which the Government declines to exhibit or point to any
testimony laying a foundation or supporting its interpretation. ‘Trust us’, the Government says
(even though Judge Sanders has already repudiated the claim that the email implicates
Petitioner.) The Government represents that they secured a verbal waiver from Petitioner,
allowing Mr. Farese to also represent Joey Langston in a plea deal adverse to the Scruggs
Petitioner. ‘Trust us’, the Government says (even though a verbal waiver of such a direct
conflict would be irrational and contrary to the Mississippi Rules of Professional Conduct).8
If not for these naked representations, a hearing on this motion would be altogether
unnecessary. In all fairness, these sorts of new allegations should have been substantiated in the
Government’s Brief, and the requested discovery is really just giving the Government a second
chance to do that. Petitioner simply asks for the Government to put its evidence where its mouth
is, just as the Petitioner did, providing dozens and dozens of citations to the 23 exhibits attached
to his Petition. See D.E. 303, Exhs. A to W. At the very least, the propounded discovery is an
attempt to get the Government to clarify what it does and does not contest, given their failure to
do so in their briefing to date. 9
8
Legal ethics expert and former President of the Mississippi Bar Cham Trotter has so opinioned in a letter to the
Mississippi Bar Association on the Anthony Farese matter. Mr. Trotter’s letter and opinion will be provided to the
Court if necessary.
9
For example, on the current record, it appears that the Court never had jurisdiction to accept a plea to misprision
of felony. Not only was the underlying “felony” (earwigging) not a federal crime, but there is also not even an
allegation that the Defendant took any affirmative act to conceal the crime, as would be required under Fifth Circuit
doctrine. See U.S. v. Walkes, Slip Copy, 2011 WL 396485 (5th Cir., 2011) (“The elements of misprision of a felony
include… an affirmative step to conceal the felony.”)(citing United States v. Adams, 961 F.2d 505, 508 (5th
Cir.1992)). U.S. v. Meacham, 626 F.2d 503, 510 (5th Cir., 1980) (“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.”) By putting the Government on the
record, the propounded discovery will allow this Court to expeditiously resolve this jurisdictional question. See
Requests for Admissions Nos. 5 to 7 (and following Interrogatories and Requests for Documents).
11
“Talk is cheap,” Jutzi-Johnson v. U.S., 263 F.3d 753, 758 (7th Cir., 2001) (J. Posner)
reminds us. Courts serve a higher purpose than providing a forum for cheap talk. “The function
of courts of justice [is] to ascertain the truth.” Brown v. U.S., 356 U.S. 148 (1958).
IV. Conclusion
This Court should welcome civil discovery as a mechanism “to narrow and clarify the
basic issues between the parties, and as a device for ascertaining the facts[.]” Hickman v. Taylor,
329 U.S. 495, 501 (1947). The Court will recall that Petitioner has never conceded that there
was a bribery in this case, much less that he participated in a bribery. In contrast, the Petitioner’s
earwigging plea was exceedingly simple – he knew that Tim Balducci had an ex parte
conversation with Judge Lackey. See Factual Basis, D.E. 190. This Court has provided a
hearing that will allow Petitioner to address his actual innocence of any bribery related crime.
Narrowing of the issues or discovery of predicate facts will serve the Court by focusing the
hearing on contested issues. Respectfully, if there is a case in which it is necessary “to narrow
and clarify the basic issues between the parties, and [to] ascertain[] the facts” in advance of a
hearing, this would be it. It will also provide Petitioner the opportunity for the process that is
due him. After all, the Government has shown itself to be – to put it gently – unreliable in its
representations to the Court in this case. Petitioner can only refute what the Government says by
access to the Government’s sources.
This Court remains the guardian of justice. Justice depends on the truth.
Petitioner respectfully asks the Court to reconsider its previous ruling denying discovery.
Respectfully submitted, this 2nd day of March, 2011.
/s/Edward D. Robertson, Jr.
12
Pro hac vice

Bartimus, Frickleton, Robertson & Gorny, P.C.
715 Swifts Highway
Jefferson City, Missouri 65109
573-659-4454
573-659-4460 (fax)
chiprob@earthlink.net
Christopher T. Robertson
Attorney at Law
MS Bar # 102646
christophertrobertson@gmail.com
6342 N Via Lomas de Paloma
Tucson, AZ 85718
CERTIFICATE OF SERVICE
I, Edward D. Robertson, Jr. hereby certify that on March 2, 2011, I served copies of this Motion
to 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
13
Case 3:07-cr-00192-NBB-SAA Document 319-1 Filed 03/02/11 Page 1 of 52
1
1 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI
2
3
UNITED STATES OF AMERICA . Docket No. 3:07CR192
4 .
Plaintiff . Oxford, Mississippi
5 . January 16, 2008
v. . 10:00 a.m.
6 .
RICHARD F. "DICKIE" SCRUGGS .
7 DAVID ZACHARY SCRUGGS .
SIDNEY A. BACKSTROM .
8 .
Defendants .
9 . . . . . . . . . . . . . . . .
10
11
12 MOTION HEARING
BEFORE THE HONORABLE NEAL B. BIGGERS
13 U.S. SENIOR DISTRICT JUDGE
14
15
APPEARANCES:
16
17 For the Plaintiff: United States Attorney's Office

Northern District of Mississippi
18 BY: DAVID A. SANDERS, ESQ.
BY: ROBERT H. NORMAN, ESQ.
19 BY: THOMAS W. DAWSON, ESQ.
900 Jefferson Avenue
20 Oxford, Mississippi 38655-3608
21 For the Defendant

Richard F. "Dickie" Scruggs:
22 JOHN W. KEKER, ESQ.
BROOK DOOLEY, ESQ.
23 Keker & Van Nest, LLP
710 Sansome Street
24 San Francisco, California 94111-1704
25
Exhibit A
2
1 For the Defendant

David Zachary Scruggs:
2 CHRISTOPHER TARVER ROBERTSON, ESQ.
Scruggs Law Firm, PA
3 120-A Courthouse Square
Post Office Box 1136
4 Oxford, Mississippi 38655
662-281-1212
5
TODD P. GRAVES, ESQ.
6 NATHAN GARRETT, ESQ.
Graves, Bartle & Marcus, LLC
7 1100 Main Street
Suite 2600
8 Kansas City, Missouri 64105
816-256-3173
9
For the Defendant
10 Sydney A. Backstrom:
FRANK W. TRAPP, ESQ.
11 Phelps Dunbar
111 East Capitol Street, Suite 600
12 Post Office Box 23066
Jackson, Mississippi 39225-3066
13 601-352-2300
14 J. RHEA TANNEHILL, JR., ESQ.

Tannehill & Carmean, PLLC
15 400 South Lamar Boulevard, Suite C
662-236-9996
17
18
19
20
21
22 Court Reporter: Rita Davis Sisk

911 Jackson Avenue, Room 369
(662) 281-3027
24
Proceedings recorded by mechanical stenography, transcript
25 produced by computer.
Exhibit A
3
1 (CALL TO ORDER OF THE COURT)
2 THE COURT: All right. We have several matters set
3 for hearing this morning. The order in which we're going to
4 take them up is the motion by Mr. Tony Farese to withdraw as
5 counsel for Zach Scruggs. We'll take that up first, and then
6 we'll take up the matter of whether Mr. Ken Coghlan should be
7 allowed to represent Mr. Scruggs after he's previously
8 represented a co-defendant who may be a witness against
9 Mr. Scruggs.
10 Then we'll take up this motion by the defendants to seal a
11 previous motion filed for a continuance and an extension of the
12 pretrial motion deadline. And then we'll take up the
13 defendant's motion for discovery, additional discovery.
14 As far as the matter of Mr. Tony Farese, his motion to
15 withdraw earlier was denied because that would have left
16 Mr. Zach Scruggs without counsel. I understand, now, that
17 Mr. Zach Scruggs has employed other counsel. And, so,
18 Mr. Farese's motion to withdraw will be granted. He's no
19 longer counsel in the case.
20 As far as Mr. Coghlan is concerned -- is he here?
21 MR. KEKER: I'm John Keker for Mr. Scruggs; and
22 Mr. Coghlan is here, Your Honor, sitting next to Mr. Scruggs.
23 And he is available -- both of them are available to answer any
24 questions or make any explanations that you are interested in.
25 THE COURT: All right. Well, as I understand it,
Exhibit A
4
1 Mr. Keker, you or a member of your firm had called my chambers
2 and had asked to give an explanation as to why Mr. Coghlan
3 should be allowed to represent Mr. Scruggs.
4 MR. KEKER: Yes, sir. Mr. Coghlan had previously
5 represented Defendant Steve Patterson for a brief time, around
6 the time of bail and maybe for the first week of the
7 proceedings until Mr. Patterson chose to get different counsel.
8 Mr. Patterson has saw -- has been counseled by independent
9 counsel, Mr. Eastland, and his other counsel that you saw
10 yesterday, and has signed a waiver recognizing his rights,
11 recognizing Mr. Coghlan's duties to him, which continue, which
12 is to keep attorney/client privileges sacrosanct; and he will.
13 And Mr. Scruggs has been counseled by me about all the
14 pitfalls and problems that could possibly come up. And he has
15 signed a waiver. We have both the Patterson waiver and the
16 Scruggs' waiver here in writing. And I'm here to tell you that
17 Mr. Coghlan and I have talked. It's Mr. Scruggs' intention to
18 have me be lead counsel. If, for any reason, Mr. Patterson
19 ends up testifying in the case, I'll examine him rather than
20 Mr. Coghlan examining him in excess of caution.
21 And this is a matter, which, as the Government pointed
22 out, is within the sound discretion of the Court. As you know,
23 we are from out of state and greatly need capable,
24 knowledgeable counsel. And I found myself, in the early stages
25 in this case, very impressed with Mr. Coghlan and hope that we
Exhibit A
5
1 can keep him and think that his knowledge of this Court's
2 procedures, federal procedure, federal criminal law and how
3 things are done locally will be of great assistance in the
4 case.
5 And they're here -- as I say, they're here. Any questions
6 of Mr. Scruggs or Mr. Coghlan, they're ready, willing, and able
7 to answer it. If you wanted to take them back in chambers and
8 scrub them down, you could -- whatever you need to do, they're
9 prepared to do.
10 THE COURT: Let me get the Government's attitude on
11 this issue.
12 MR. DAWSON: May it please the Court, first of all,
13 Mr. Coghlan is a very fine lawyer and a personal friend of most
14 of the assistants in the United States Attorney's Office and
15 has continuing matters with us from time to time. And based on
16 our experience, certainly, he is, as I say, a fine lawyer and a
17 voice of reason.
18 Having said that, the potential conflicts that we had
19 alluded to in our bench memorandum, which was furnished to the
20 Court and to counsel, I think now have blossomed into actual
21 conflicts with respect to Mr. Patterson, who entered a plea of
22 guilty yesterday and will be a Government witness in all
23 probability should this case go to trial.
24 Now, we believe our bench memorandum puts the issue
25 foursquare before the Court, and I won't belabor the Court with
Exhibit A
6
1 repeating that which was in the memorandum. The Court has, in
2 addition to the issues that were set forth in the memorandum
3 about the potential and actual conflicts and all the
4 permutations of those conflicts -- the Court has an independent
5 interest in seeing that trials are conducted under the highest
6 ethical standards of the profession and that the public
7 perceive the trials as being fair and in accordance with those
8 highly ethical standards.
9 If the -- and as we mentioned in the memorandum, I think
10 the starting point, if the Court would be leaning toward
11 accepting the waivers, would be -- it would be necessary for
12 the Court to personally address both Mr. Patterson and
13 Mr. Scruggs and voir dire them with respect to their
14 understanding.
15 And I am fully aware that Mr. Scruggs and Mr. Patterson
16 both are educated and sophisticated people; but you know, it's
17 entirely possible that there are conflict issues that we do not
18 even recognize at this point that could pop up mid-trial and
19 disrupt, potentially causing a mistrial, severances, and that
20 sort of thing, that I know the Court wants to avoid; and we
21 want to avoid.
22 Essentially, another point is that Mr. Scruggs is not left
23 without counsel. He has very fine counsel in John Keker and
24 his firm; and that, as we stated in the memorandum, the Court
25 has granted wide latitude with respect to these decisions based
Exhibit A
7
1 on the Supreme Court case of Wheat v. United States. We
2 believe that this is a dangerous area, and it is fraught with
3 uncertainty. But we still believe, as we said in the
4 memorandum, that the Court has granted wide latitude in these
5 matters.
6 THE COURT: All right. Thank you. Well, to -- for
7 an attorney to represent a defendant after he's previously
8 represented a defendant in the same case and then later be
9 called upon to cross-examine or be a part of the team that
10 would cross-examine the previous client and the previous
11 client's to testify against his present client certainly does
12 not pass the "smell" test.
13 And if it were for the -- if it was the situation that --
14 that the defendant -- present defendant has no other local
15 counsel that he could call on or could employ to assist
16 defendant's present counsel, that would be a situation that
17 would require the Court or make the Court lean more toward
18 allowing Mr. Coghlan in.
19 Mr. Coghlan -- I agree with the Government's counsel -- is
20 an excellent attorney. He's in this Court very often, and he
21 is always -- does a good job and well received and knows the
22 rules of the Court and abides by them. But he's not the only
23 attorney in this local area or regional area that would be
24 available to assist Mr. Scruggs' present group of attorneys in
25 representing him.
Exhibit A
8
1 And, so, for those reasons, the motion to re-employ
2 Mr. Coghlan as part of this defense team will be denied. And
3 I'm sure Counsel can find other local counsel to assist them
4 who are also excellent attorneys if they wish to do so.
5 Now, as far as the motion by the defendants to seal the
6 motion for a continuance that was previously filed -- who's
7 going to speak? Mr. Trapp?
8 MR. TRAPP: Yes, Your Honor. Your Honor, we filed
9 that out of an abundance of caution. We would withdraw it.
10 THE COURT: All right. Fine. That takes care of
11 that. All right. Then --
12 MR. KEKER: Your Honor, could we get some -- we
13 joined because of the Court's orders, and it was filed in the
14 abundance of caution because of the Court's orders. Are we to
15 understand that all matters are unsealed, and that we can just
16 go ahead and file our pleadings and quote what's in discovery
17 and so on? Because that's the -- we don't have any objection
18 to that but --
19 THE COURT: Right. The way I'm looking at your
20 discovery now, Mr. Keker, is that anything that the Government
21 has furnished you in the form of discovery is available to you
22 to use in your defense as far as filings or testimony.
23 MR. KEKER: Yes, sir. Thank you.
24 THE COURT: Do you have any problem with that,
25 Mr. Dawson?
Exhibit A
9
1 MR. DAWSON: No, Your Honor.
2 THE COURT: All right. Good. Okay. Then that
3 brings us to the question of the additional discovery that the
4 defendants have asked for. I understand that counsel conferred
5 yesterday afternoon about these issues. Now, do you have -- do
6 counsel now have a list of the material that you -- that
7 defendants say they're entitled to and the Government says
8 you're not that you want to give to me?
9 MR. KEKER: Yes, Your Honor. And if we could add to
10 it some of the resolved matters just to put on the record what
11 we've been told, I'm prepared to go through that list.
12 THE COURT: All right. That will be fine. I'll hear
13 what you have to say.
14 MR. KEKER: Your Honor -- and I will use the order
15 that we used in our discovery motion and particularly in the
16 reply brief. They're A-1, A-2, A-3, and so on. The first
17 category was recorded statements of the defendants. And we are
18 told that we have them all with an exception, which the
19 Government has agreed to provide. And the exception is
20 recorded conversations that the agents or somebody deemed
21 nonpertinent or relevant.
22 And after discussions, they have agreed to give us those.
23 We don't know how many those are, but we know that there are
24 several conversations that were recorded, not turned over
25 because they were deemed nonpertinent; but that's solved.
Exhibit A
10
1 THE COURT: Okay. Now, as I understand it, these
2 conversations that were recorded, the agents listened to a part
3 of it. They -- if they're of the opinion that the conversation
4 has nothing to do with this case -- for example, two defendants
5 may be talking about what they had for dinner last night; then
6 they stop listening.
7 MR. KEKER: Well, there's some of that, that's
8 minimization. Then there's some where they didn't stop
9 listening, but they did turn out to be irrelevant. And last
10 Thursday, we got the call logs, which are this thick
11 (indicating) which will be very, very helpful to us as we go
12 through, because there's enough of a description in there for
13 us to be able to find the -- we don't have such and such a call
14 and go to the Government and ask them, Can we have that call
15 because -- and if we have a dispute about it, we'll, obviously,
16 have to come back to Court. But I don't think we're going to
17 have a dispute.
18 We do have lots of phone records that don't line up with
19 certain lists that we have. This is not a question of bad
20 faith; it's simply a question of everybody trying to do things
21 really fast. And it's going to take us a while to line it all
22 up and make sure that we have what we should have and ask the
23 Government for what we don't have.
24 THE COURT: All right. Fine.
25 MR. KEKER: So that's taken care of with those
Exhibit A
11
1 exceptions. The second one, written records, in particular, we
2 were told that Mr. Balducci went to the Scruggs Law Firm on
3 November 5th and the 19th; and there are no recordings of those
4 visits. We had asked for those. But if there's no recordings,
5 there's nothing to fight about.
6 With respect to statements of co-defendants, which is A-3,
7 we believe that we're entitled to those if they are Brady or
8 Giglio material, if they're favorable to the defense or
9 exculpatory. And the kind of example that I wanted to bring to
10 Your Honor's attention is an example that I saw yesterday when
11 Mr. Patterson pled.
12 Mr. Patterson apparently -- I assume would say to them
13 what he said to you, which was, contrary to what the indictment
14 says, he did not -- there was not a conspiracy formed in March
15 at that meeting where it's alleged that Patterson, Balducci,
16 and people from the Scruggs Law Firm got together in March.
17 Mr. Patterson apparently has said to the Government, I
18 didn't join -- I didn't think that meeting was a conspiracy.
19 That's the kind of Brady material that we believe should be
20 given to us, and that that trumps whatever rule you're going to
21 impose about Jencks. I mean, it's not something they can wait
22 to the last minute to give us. So we would ask you to order
23 them to provide statements of co-defendants if they amount to
24 Brady or come close to Brady, Giglio, that sort of thing.
25 THE COURT: All right. I think that's proper. It
Exhibit A
12
1 will be so.
2 MR. KEKER: Thank you, Your Honor. And with respect
3 to A-4, statements of alleged co-defendants -- and they said
4 they don't have any. And, so, that's not an issue.
5 THE COURT: Where are you? What list are you going
6 by?
7 MR. KEKER: I'm looking at our reply in support of
8 our motion for discovery, and I'm now up to page 4 -- page 4,
9 which is B, documents and objects.
10 THE COURT: Okay. All right. I'm with you now.
11 MR. KEKER: And those three bullet points that appear
12 on that page we discussed, and the Government told us that
13 they'd given us all of that. And, so, there's no issue about
14 those three bullet points.
15 THE COURT: Okay.
16 MR. KEKER: With respect to the affidavit and
17 application for a search warrant for the Langston Law Firm, we
18 discussed that and learned this morning that they have agreed
19 to give us that search warrant affidavit as we've argued. So
20 that's -- we haven't gotten it yet, but we'll get it promptly,
21 I believe.
22 THE COURT: Even though they said earlier that that's
23 a totally independent separate investigation?
24 MR. KEKER: Well, what's happened is that that's no
25 longer totally independent. The Government has told us that
Exhibit A
13
1 they intend to file a 404(b) notice in the future with respect
2 to that Wilson case and what everybody, I guess, has been
3 reading about in the paper, Mr. Langston's plea and so on. And
4 that will be the subject of litigation about whether or not
5 it's proper 404(b) evidence. And it -- basically, they just
6 doubled the case. But we'll get to that in a minute.
7 THE COURT: Okay. So there's no issue on that.
8 MR. KEKER: There's no issue on that, Your Honor.
9 There is an issue with respect to the ten-day reports, which is
10 B-2 on page 6. And this is what the issue is: Normally, some
11 courts have ordered the turning over of ten-day reports for the
12 wiretaps, other courts have not.
13 But the reason they're important in this case is that
14 there's, we believe, an important Franks v. Delaware issue
15 about what was omitted from the search warrant affidavits and
16 the wiretap applications that were submitted to you. And
17 that -- and our argument will be on motions that if they had
18 been properly full you -- probable cause would not have been
19 established. And we've raised in that motion to continue some
20 of those things.
21 I mean, for example, on September 27 when Mr. Balducci was
22 giving Judge Lackey money, Judge Lackey was pushing him to say,
23 "Now, Scruggs knows about this, doesn't he?" And Balducci
24 said, "Well, no, actually, he doesn't know about this." That
25 kind of material.
Exhibit A
14
1 The ten-day reports are submitted to the authorizing
2 judge. In this case, I understand it was you. And we need to
3 see -- because there's a willfulness element to this, we need
4 to see what they're providing you in asking for extensions to
5 wiretap applications. And our argument will be, depending on
6 what's in there, that if favorable exculpatory information of
7 Mr. Scruggs is well-known to the agents and they're not telling
8 you about it, then that shows willfulness, which is perhaps an
9 important part of Franks v. Delaware. So --
10 THE COURT: Well, let's see now. I want to hear the
11 Government's response to this. This is an area that I think is
12 a genuine issue between counsel.
13 MR. KEKER: I agree. Yes, sir.
14 THE COURT: So let me -- is that all you want to say
15 about why you should be provided the ten-day reports from the
16 Government?
17 MR. KEKER: Yes, sir, I'm done with that piece.
18 THE COURT: As I understand what you're asking for,
19 there was a -- in those ten-day reports, there was an
20 application to continue the ten-day -- the wiretap for an
21 additional time. Then there was kind of a synopsis of the
22 telephone conversations, not verbatim, just a little -- a
23 summary of what each conversation was.
24 MR. KEKER: That's what we've been told. We haven't
25 seen them, but that's --
Exhibit A
15
1 THE COURT: That's what you want.
2 MR. KEKER: Yes, sir, that's what we want.
3 THE COURT: Okay. Let me hear from the Government on
4 that issue, then we'll go to the next one.
5 MR. SANDERS: As to that issue, Your Honor, he
6 mentioned that he -- there may be a Franks v. Delaware issue on
7 the affidavits. The cases -- most of the cases that have
8 discussed this issue, ten-day reports, refer to -- there's a
9 couple of them I refer to in my response, the Chimera decision
10 and the Orozco decision. This is the precise issue they
11 discussed in those opinions.
12 And the point the courts made then, in those cases -- and
13 it seems reasonable to the Government -- is if they believe
14 there are Franks issues in the affidavits, for the
15 applications, the application for extension those can be
16 determined and are to be determined from the face of those
17 applications. If they believe they need to see what went on in
18 the interim from the first application to the extension,
19 they've got the phone calls themselves.
20 So if it's their contention that something was held back
21 from the Court after our first application for a wiretap that
22 would have caused the Court at some point during that 30-day
23 interval to shut down the wiretap, the best place to look for
24 that is were there relevant calls taking place during that
25 30-day period?
Exhibit A
16
1 They've got those phone calls. It's clear there were
2 regular phone calls during that 30-day period that were
3 extremely relevant and extremely incriminating. There's no
4 point in providing ten-day reports. The rules don't provide
5 for ten-day reports. The statutes don't provide for ten-day
6 reports.
7 The cases talk about this is best determined by looking to
8 the applications and the affidavits and the orders and the
9 logs, and we've provided all of that to them. In addition to
10 that, we've provided recordings of the phone calls themselves.
11 So there's just nothing out there to support any reason to give
12 these ten-day reports.
13 In addition to that, the statute itself lays out exactly
14 what we are to provide to them and specifically -- or not
15 specifically excluded it, but it's simply not there in 25 -- I
16 believe it's 18, subsection 7 talks about what the Government
17 is to give them and does not provide that we give ten-day
18 reports. They've got -- the ten-day reports are simply
19 summaries of what they've got.
20 MR. KEKER: May I respond very briefly to that, Your
21 Honor?
22 THE COURT: Yes, you may.
23 MR. KEKER: Thank you. Your Honor, one of the issues
24 in Franks is going to be whether or not the Government
25 deliberately or recklessly misled the judge. To be very
Exhibit A
17
1 specific here, they got a wiretap up and running on September
2 27.
3 On September 27, Balducci gives money to Judge Lackey. On
4 September 27, Judge Lackey says, "Now, this money came from
5 Scruggs, right?" Balducci says, "No." "Scruggs knows about
6 this, right?" Balducci says, "No." And then later, they come
7 back and get an extension of that wiretap. They get an
8 extension of -- they get a wiretap on Patterson's phone.
9 If there's some taint early on here, we need to be able to
10 prove that it was deliberate and so on. The ten-day reports
11 are part of this pattern of representations to the Court that
12 will be important for us to make that showing. Therefore,
13 they're material to the defense. Therefore, they're
14 discoverable under Rule 16. That's the --
15 THE COURT: Is your issue, your request, based on
16 possible Brady material that you might find in those reports or
17 is it based on a lack of probable cause that might exist to
18 continue the wiretap?
19 MR. KEKER: It's based on the fact that those reports
20 would be evidence, depending on what's in them or not in them,
21 of deliberateness on the part of the Government, deliberate
22 omissions, or recklessness on the part of the Government if
23 they've got -- I mean, we just need to see.
24 But if they tell you a summary of a number of these calls
25 and leave out of that evidence that exonerates Mr. Scruggs,
Exhibit A
18
1 then that's going to be part of our showing, not all of our
2 showing, but part of our showing on this issue of
3 deliberateness and recklessness.
4 THE COURT: All right. The motion -- turn over
5 the -- the ten-day reports will be denied. Counsel has the
6 actual telephone calls that were made and the -- there's no
7 justification, in the Court's opinion, of adding to the volume
8 of material already existing in this case by turning over these
9 synopses of the telephone conversations.
10 And if there's any Brady material anywhere, that's the
11 burden of the Government to -- in these ten-day reports, it's
12 the burden of the Government to produce it, just like it's the
13 burden of the Government to produce it from any other source,
14 and not the prerogative of the defendant to look at everything
15 in the Government's file to see if they can find any Brady
16 material.
17 All right. What is your next area?
18 MR. KEKER: Next one, Your Honor, on page 6, is B-3.
19 It's the Balducci/Judge Lackey recordings. And the Government
20 has told us that there were no recordings between Mr. Balducci
21 and Judge Lackey prior to May 4. And we had asked what about
22 all these quotation marks in the indictment and so on that make
23 it look like you're quoting from a recording? We were told
24 that they're just -- that that simply is indicative of a
25 witness's memory, and that they're nonrecorded. If any of
Exhibit A
19
1 those nonrecorded statements are Brady and Giglio, obviously,
2 we're entitled to it. But apparently, there's not much of an
3 issue there. Frank.
4 MR. TRAPP: Your Honor, may I address this briefly,
5 also? I had made a request. The United States initially
6 produced to us two tape cassettes. One marked May the 3rd; one
7 marked May the 4th. There are quotes that come from the May
8 3rd tape in the affidavit of the FBI agent, Mr. Delaney.
9 When we asked initially -- those two cassettes, the May
10 3rd and the May 4th cassette, contained the same recording. So
11 we simply asked the United States to give us a correct copy of
12 those two recordings. For this tape recording to be produced
13 to us marked May 3rd, Your Honor, they have a log of when they
14 start taping and things of that nature. And we were told that
15 was -- they believed that that was a May 3rd recording.
16 Now, the reason all of this is more relevant, perhaps, to
17 my client than anybody is that Overt Act No. 5 and Count 5 of
18 the indictment both reflect a contention that my client
19 e-mailed a May 4 order to Tim Balducci on May the 4th. The May
20 4th or May 3rd, whichever -- I guess it's now May 4th. I just
21 learned that yesterday -- or really this morning talking, that
22 the United States has now taken the position there is no
23 recording for May 3rd.
24 But the May 4th recording does reflect Mr. Balducci
25 speaking to that May 4 order stating, in effect, it is his
Exhibit A
20
1 thoughts of what Judge Lackey ought to consider. Now, to get
2 to the point I want to make at this point, if the Court doesn't
3 mind, is if there's actually not a recording for May 3rd, I
4 would ask that we be given a copy of whatever record there is
5 of the May 3rd conversation between Judge Lackey and Balducci.
6 Because if there are quotes within the affidavit of
7 Mr. Delaney -- there are quotes in the indictment, Your Honor,
8 that are suppose to reflect direct quotes of what was stated in
9 that conversation. And as our motion for a continuance shows
10 this Court, things have been taken significantly out of
11 context; and we are entitled to see that -- from which that
12 quote -- whatever that quote was extracted from, we're entitled
13 to see it; and please the Court order it be provided.
14 THE COURT: All right. On what grounds -- I'd like
15 to clear this up now. On what grounds do you contend that you
16 would be entitled to that, if there was?
17 MR. TRAPP: Because, Your Honor, we believe it's a
18 reflection of a conversation between Balducci and Lackey; and
19 it's consistent with the others that they've produced. And,
20 secondly, Your Honor --
21 THE COURT: Okay. But at that point, Mr. Balducci
22 was not a cooperating government agent, was he?
23 MR. TRAPP: Well, they've produced the others, Your
24 Honor. And secondly, in connection with the making of the
25 Franks v. Delaware, we're entitled to see whether or not they
Exhibit A
21
1 have taken that quote, whatever it was recorded in -- and see
2 that quote in order that we can see the true context in which
3 it's made.
4 MR. KEKER: Your Honor, the quote would come from a
5 known government agent, Judge Lackey. That's who would have
6 reported what happened. If they didn't record it, the only
7 place they could have gotten it is Judge Lackey. The FBI agent
8 puts it in the affidavit, puts quotes around it. We believe
9 that it's incorrect.
10 THE COURT: I agree that would be a basis to turn it
11 over. All right. I'm going to ask for the Government's
12 response on this. Mr. Sanders, you can use this podium so
13 Counsel won't have to keep shuffling his papers back and forth.
14 MR. SANDERS: Yes, sir. Your Honor, just to make
15 clear, there was no recording of the May 3rd conversation. So
16 that's -- we've clarified that. We did give them two
17 cassettes. One had May the 3rd written on it; one had May the
18 4th written on it. That was a mistake. They were the exact
19 same conversation, and it was made on May the 4th.
20 The quotes that they continue to refer to come from
21 statements from Judge Lackey to Agent Delaney. They fall
22 squarely within the Jencks Act. And we will produce those in
23 accordance with the Jencks Act, but they are statements of a
24 government witness. And Rule 16 specifically excludes anything
25 that falls within the Jencks Act.
Exhibit A
22
1 THE COURT: All right. So these quotes are in the
2 indictment, some of them?
3 MR. SANDERS: Either in the indictment -- I'm not
4 certain of the specific quotes they're talking about -- or
5 affidavits and applications for search warrants.
6 MR. KEKER: These are the quotes about "they've
7 changed their strategy" and that business which are in
8 quotes -- and I believe in the indictment; I know in Agent
9 Delaney's affidavit. It's the beginning of this trail.
10 It leads one to believe, reading the affidavit, that that
11 is a recorded conversation; and this is the God's own truth of
12 it. And if it's not -- if it doesn't appear in Judge Lackey's
13 302s or however his conversations were memorialized, we're
14 going to have a Franks issue sometime, when we get it. And it
15 would make a lot of sense -- it seems to us -- to do it now.
16 MR. TRAPP: (Showing document.)
17 MR. KEKER: (Perusing document.) It's in the
18 indictment.
19 THE COURT: If there is no recording -- and Counsel
20 stated on the record for the Government, There is no recording.
21 So where -- what records do you have or did you have from which
22 these quotes were made?
23 MR. SANDERS: Yes, sir. This is from Agent Delaney's
24 report. Judge Lackey gave us a statement of what took place on
25 that day. This is straight out of Judge Lackey's statement.
Exhibit A
23
1 If -- I think they're arguing that their grounds for us to
2 produce that is that we've somehow been dishonest and put
3 something dishonest in an affidavit. That's simply not the
4 case.
5 But they could do that with anything we've got and say,
6 Give it to us; we don't believe you. It comes out of Judge
7 Lackey's statement. Judge Lackey gave that statement to the
8 Government. That clearly falls within the Jencks Act.
9 MR. KEKER: We don't need the whole statement. We
10 need the part of the statement where Judge -- this is quoted in
11 the indictment under Overt Act 4, quote, "They had changed
12 their strategy." If the statement doesn't say that in exactly
13 those words, it's material to the defense to bring these
14 motions.
15 THE COURT: Well, you'll be given the statement, the
16 notes -- Judge Lackey's statement at a later date. At this
17 point, no. At a later date. And we'll get into the Jencks Act
18 timing at a later time during this hearing.
19 MR. KEKER: Understood. Your Honor, the next matter,
20 4, recordings of defendants, we've talked about. Number 5 on
21 page 7 are transcripts. And this is just to report. I'm
22 not -- the Government has been extremely professional,
23 cooperative, cordial about working through this discovery. But
24 there's a lot of it; and some of the timing, I know, has been
25 disappointing to them.
Exhibit A
24
1 We talked about getting transcripts that they intended to
2 use and transcripts of these calls in mid-December. And they
3 thought that they were being proofread, and we were expecting
4 them. We've been asking back and forth. And as of now, the
5 state of play is this: Mr. Sanders plans by next Friday, a
6 week from Friday, whatever that is, eight days, ten days from
7 here, to give us a list of the calls for which they are making
8 transcripts.
9 Mr. Sanders is not in a position, wasn't yesterday, to
10 tell us when those transcripts will be available. I mean, the
11 transcripts that they plan to use in the trial are clearly Rule
12 16 material; they've got to turn them over.
13 And once we get them, we can anticipate some good-faith
14 disputes about what -- the accuracy of the transcript and want
15 to talk and everybody would want to go back and listen. And
16 we'll resolve most of those, but maybe some of them will have
17 to be brought to you. And then we need to look around their
18 transcripts and think, Well, we need these other transcripts;
19 or, We need more than they plan to put in. And we may need to
20 make our own transcripts for that. So that's gotten to be a
21 big problem and a cause of great delay.
22 It's also a big problem for bringing motions because what
23 we'd like to do is be able to come in and say, Judge, here's
24 the motion and attached are exhibits. And rather than ask you
25 to listen to all these calls, here's a transcript of the call
Exhibit A
25
1 and if you want to listen you can; but it's a lot easier to
2 read it. We can't do that now. And I'm not -- we're working
3 on it, but it's not fitting into the schedule that's been set
4 up for motions and trial on this case.
5 THE COURT: What's your position on that,
6 Mr. Sanders?
7 MR. SANDERS: Yes, Your Honor. We've been discussing
8 this with defense counsel. Agent Delaney is working
9 virtually -- or not virtually, is working every day on these
10 transcripts. We don't have a team available to work on
11 transcripts, but that's what he's doing. As recently as this
12 morning, he brought them --
13 THE COURT: When you say "he's working on them," what
14 does that mean?
15 MR. SANDERS: He is sitting at a typewriter with the
16 earphones and is typing. He's not necessarily secretary speed,
17 but he is -- as a matter of fact, as recently as this morning,
18 he brought us a group of transcripts that we plan to turn over
19 to them while they're still here in town.
20 MR. KEKER: That'll be the first transcripts we've
21 seen, which is great. And again, I'm not casting aspersions.
22 This has gone pretty fast. And we're not surprised that it's
23 taking some time, but we're concerned because it's not fitting
24 in with the schedule that you've told us we had to meet.
25 THE COURT: When do you anticipate getting them
Exhibit A
26
1 transcripts of the telephone conversations that you will
2 introduce at the trial? Of course, the transcripts are not
3 evidence.
4 MR. KEKER: We agree, Your Honor; but if the jury's
5 going to look at them --
6 THE COURT: It's just an aid for the jury. And they
7 are always instructed and will be instructed that if they hear
8 any conflict in the recordings with the conversation that is
9 disagreeing with the transcript, they're to disregard the
10 transcript and go by the recording. So it's not a matter of
11 this transcript is evidence.
12 MR. KEKER: Won't the transcript go into the jury
13 room, Your Honor, as an aid?
14 THE COURT: Well, possibly.
15 MR. KEKER: Yeah. I mean, I understand this. I know
16 the rules, but --
17 THE COURT: I know you do.
18 MR. KEKER: -- transcripts need to be accurate.
19 THE COURT: Exactly. I agree. And when do you
20 anticipate you can do this, get it completed?
21 MR. SANDERS: If I could, Your Honor, I would direct
22 that to Agent Delaney.
23 MR. DELANEY: Yes, sir. We're working right now with
24 Mr. Sanders to compile a list of tapes that they plan to use at
25 trial. Once I get that -- some of these recordings have been
Exhibit A
27
1 already partially transcribed. They're not completed. There
2 might be some that haven't been started at all yet. So I'm not
3 sure. The transcripts I turned over to Mr. Sanders this
4 morning -- there were seven of them -- relate to some of the
5 recordings that were done in Calhoun City and some of the
6 recordings that Mr. Balducci made.
7 THE COURT: Well, Mr. Sanders, have you told Agent
8 Delaney -- I would hope that the FBI can put more manpower on
9 this than one man listening to them and typing.
10 MR. DELANEY: What's been going on, Your Honor, is
11 that we have a steno that takes the recording and goes through
12 the tape and does a first draft. And then I have to go back
13 through that and make the corrections and additions and
14 omissions in there.
15 THE COURT: All right. Have you, Mr. Sanders, and
16 the Government's attorneys, furnished to Mr. Delaney which
17 specific recordings you wanted transcripts of?
18 MR. SANDERS: Yes, Your Honor. Not every one. He's
19 got ones that he's not yet completed. And as he's working on
20 those, we're repeating and repeating and listening to the tapes
21 over and again, obviously, deciding precisely which ones we
22 want to introduce at trial.
23 THE COURT: Can you give me any kind of an estimate
24 about when this procedure will be completed?
25 MR. SANDERS: As far as giving him a list of the --
Exhibit A
28
1 THE COURT: No. When everything will be completed.
2 MR. SANDERS: (Indicating).
3 MR. DELANEY: Do you have a rough idea how many we're
4 talking about?
5 MR. SANDERS: Probably -- I don't know -- 20 or 25
6 calls, something like that.
7 MR. DELANEY: One to two weeks.
8 MR. SANDERS: One to two weeks, Your Honor, is what
9 he says he can do it when I -- I can get him the calls by the
10 end of the weekend.
11 THE COURT: All right. Okay.
12 MR. KEKER: In fairness to Agent Delaney, Your Honor,
13 he's not going to finish it in one or two weeks. He's not
14 going to know what they want until after -- until next Tuesday.
15 THE COURT: Well, that's true. I understand
16 Mr. Sanders is saying he can give Mr. Delaney the calls that he
17 wants transcripts of.
18 MR. SANDERS: Yes, sir.
19 THE COURT: Before Mr. Delaney finishes the last list
20 that he was furnished.
21 MR. DELANEY: Your Honor, I do have with -- in my
22 possession, I have some transcripts of some of the recordings
23 that we believe are probably going to be wanted by the
24 Government. And those have been done; they just have not been
25 proofed yet by myself. And there's several of those. So
Exhibit A
29
1 that's going to diminish that list somewhat.
2 THE COURT: Today is the 16th. Say two weeks.
3 That'll be the 30th it will be in the hands of the defendants
4 by. You know, this does not appear to be a big problem
5 because, as I said, the transcripts are merely aids in
6 listening to the conversations. The defendants and -- the
7 defendants wanted -- well, they could make their own
8 transcripts and compare them if they wanted to once they're
9 furnished.
10 MR. KEKER: We were -- we can and maybe we will. But
11 we were told in December that we'd get the transcripts, and
12 then we'd go from there. We -- this is no asper -- it was all
13 going to be done -- if you remember, discovery was going to be
14 done by December 27th. So we've been waiting. Now we've found
15 out what the state of play is; we're going to have to go and
16 start doing our own. But it's just a problem. It's not a
17 problem that's anybody's fault; it's just a problem that I'm
18 hoping that we're realistic about it in setting the schedule,
19 that's all.
20 THE COURT: I understand. I do not consider
21 transcripts discovery. That's something they'll furnish.
22 They've got to furnish them before the trial date.
23 MR. KEKER: But we need them for motions, too, Your
24 Honor. I mean, we need them for motions. You need them for
25 motions. Otherwise, we're just dumping -- in order to do a
Exhibit A
30
1 good motion, we've got -- we can't just give you audiotapes, I
2 don't think. I don't think you'd like it much, might not even
3 listen to them.
4 THE COURT: That's right. Okay. Well, I'll keep
5 this under advisement. January 30th, transcripts anticipated
6 will be finished.
7 MR. KEKER: And, Your Honor, the 6th, on page 7, the
8 search of the Scruggs Law Firm -- and now this should be
9 expanded to the search of the Langston Law Firm. In both
10 cases, agents searched those firms and took away a tremendous
11 amount of material and have turned that over to a taint team,
12 independent prosecutors not involved in the actual prosecution.
13 They're going through it looking for relevant evidence.
14 The Government has agreed to a procedure that we have asked for
15 in our motion, which is that the taint team would, before they
16 just turn over whatever it was to these prosecutors -- they
17 would give us something akin to a privilege log; so that we
18 would know what they're going to turn over. And if we had an
19 objection to that on privilege grounds, we could discuss it
20 with them. And if we couldn't resolve it with them, we could
21 bring it to you.
22 But the point is nobody knows here when those taint teams
23 are going to finish their work. And we're relying on the
24 prosecutors to tell us, and I think they haven't been able to
25 find out.
Exhibit A
31
1 THE COURT: Well, the question that comes to my mind
2 is what, from those searches, does the Government plan on
3 introducing at the trial? As I understand it, you were -- I
4 mean, I did not issue a search warrant for the Langston Law
5 Firm. But as I understand it, the Scruggs Law Firm, you're
6 interested in whether or not these checks were -- whether or
7 not there was some cover-up of the money that was paid to
8 Balducci to make it look like it was money for a case he was
9 working on and to see if there was any such case in the file?
10 Is that basically what you're interested in?
11 MR. SANDERS: Yes, sir, Your Honor. That, in
12 addition to an e-mail. We were looking for a specific e-mail
13 that was sent, with regard to what you're talking about.
14 THE COURT: All right. Now -- so do you agree that
15 that would be -- those materials would be discoverable? They
16 would be if you're trying to show -- introduce documents into
17 the trial that came from that search.
18 MR. SANDERS: Yes, sir, Your Honor. And we talked
19 with them about this yesterday. The information we were
20 looking for with the search warrant of the Scruggs Law Firm is
21 so specific that it's -- this won't be an issue. We've
22 discussed going through the procedure with them. I think they
23 know precisely what we're looking for. There's no real issue
24 with regard to the documents coming out of Scruggs Law Firm.
25 They were concerned with -- I think there was some
Exhibit A
32
1 additional language in the search warrant, "any and all
2 documents." I think there was some additional language that
3 they were concerned may be voluminous. It's not an issue;
4 we've discussed it with them. So I think we resolved this
5 issue.
6 THE COURT: Is it resolved with you, Mr. Trapp?
7 MR. TRAPP: Well, there's a particular document that
8 they were looking for when they conducted the search. And they
9 copied the computers in the Scruggs Law Firm to look for this
10 particular e-mail. It's Overt Act 5, Your Honor, and Count 5
11 of the indictment. It's the specific wire that is the
12 foundational jurisdictional basis for Count 5 of the
13 indictment.
14 We haven't been able to locate it. And we believe
15 whenever the taint time team gives a report -- we believe,
16 based on what we know now, that they will confirm that they
17 were not able to locate it. That puts us -- it's easy enough
18 for them to bring Balducci in to say, "I sent one, and I don't
19 know why it's not on their computer." It's a lot more
20 difficult for us to prove the negative of that, if you will.
21 So we need to know not only the report but then I will
22 need to know -- assuming it shows what I believe it will show,
23 that is, that they don't find the e-mail, then I'm going to
24 have to have the names of all the people associated with that
25 review and chain of custody requirement in order to establish
Exhibit A
33
1 the negative at trial.
2 And then, secondly, we ought to -- I don't think we
3 received any materials that they have seized or taken from
4 Mr. Balducci and his firm as it existed at the time that he
5 began cooperating with the United States. And we suspect that
6 the -- based on that May 4th recording, which we referred to
7 earlier, Your Honor, that Mr. Balducci did that order; and it
8 would be in his office, not the Scruggs'. So that --
9 THE COURT: When can you furnish them this part of
10 the documents that were seized from this part of the search?
11 MR. SANDERS: The documents seized? We don't have --
12 Mr. Trapp is right. We've -- the team is still searching
13 through this server. Apparently, this is a time-consuming
14 process. They've not contacted us with anything as of yet.
15 THE COURT: And this is on the Scruggs Law Firm
16 search?
18 THE COURT: Well, have you made any effort to contact
19 them and get some estimate from them or tell them you want it,
20 get on it?
21 MR. SANDERS: Your Honor, I was actually sitting in
22 the office on a number of occasions glad that I wasn't on the
23 receiving end of Mr. Dawson's phone calls. So, yes, sir, we've
24 made numerous calls in getting on them about this issue, yes,
25 sir.
Exhibit A
34
1 THE COURT: And where is that taint team located,
2 Memphis?
4 THE COURT: Well, do you have any idea when they're
5 going to furnish it to you?
6 MR. SANDERS: Agent Delaney may have.
7 MR. DELANEY: I'm sorry, Your Honor.
8 MR. SANDERS: Do we have any idea when the taint team
9 is going to furnish what happened in their search or --
10 MR. DELANEY: When I spoke with the examiners last
11 week, Your Honor, they gave me a timetable of one to two weeks
12 with the work they had done. They also explained to me -- I
13 spoke to them, and we discussed some things. And they were
14 going to go back and conduct a follow-on search for one of the
15 items listed in the search warrant.
16 Again, as Mr. Sanders says, this item is so specific I
17 don't anticipate it will take a great deal of time; so, still,
18 as far as I know, we're probably looking at one to two weeks.
19 THE COURT: Okay. All right.
20 MR. KEKER: And then we have -- there's 75 boxes, as
21 I understand it, seized at Mr. Langston's office, which will
22 be -- which are the files of this case that would be the
23 subject of their 404(b) notice, a case that went on from 1994
24 to 2006. And we don't know yet what -- how they intend to
25 prove their 404(b) allegations by clear and convincing
Exhibit A
35
1 evidence.
2 But I suspect that some of those documents will be things
3 that they'll want to use. And I don't know if it's the same
4 taint team, but some taint team is going through the same
5 procedure there. We've agreed on the procedure; we just
6 haven't gotten the information.
7 THE COURT: Okay. Mr. Sanders, does the Government
8 have any problem with the taint team furnishing the material to
9 the defense counsel when they furnish it to you?
10 MR. KEKER: Well, we'd ask before, Your Honor. That
11 they tell us what materials they're going to furnish to the
12 Government in time for us to object for privilege grounds. And
13 they've agreed to that. This prosecution team has agreed to
14 that.
15 MR. SANDERS: We have, Your Honor.
16 THE COURT: All right. Then that's no problem.
17 MR. KEKER: So the next item, Your Honor, is --
18 THE COURT: So the only reason we've been talking
19 about this issue, then, is because of the time frame involved?
20 Is that what you're saying?
21 MR. KEKER: Yes, sir. We feel it's incumbent on us
22 to let you know what we need and what we don't have. And I've
23 said it three times; I'll say it again: The Government's doing
24 yeoman work here. We're working very cordially and hard on
25 this, but there's a lot to get done.
Exhibit A
36
1 MR. TRAPP: Your Honor, in the event they don't
2 locate the May 4th e-mail on the computer images, I'm going to
3 need the names of witnesses I can call to show that they copied
4 them and they reviewed them and they re-reviewed them; so I can
5 put them on the stand. So I would only add that to the Court's
6 observation when we were talking about time.
7 MR. KEKER: Or we'd take a stipulation, I suppose, if
8 we could get one. Wouldn't we?
9 MR. TRAPP: I believe that's exculpatory, Your Honor.
10 THE COURT: Okay. Well, if they don't locate it,
11 we'll take that issue up at that time.
12 MR. TRAPP: Okay. Thank you.
13 THE COURT: If they do locate it, it obviates that
14 issue.
15 All right. What's your next one, Mr. Keker?
16 MR. KEKER: The next one is on page 9, Your Honor,
17 documents obtained from other sources. Mr. Trapp just brought
18 this up. We asked whether or not there are any documents that
19 they've obtained from Balducci's office, and we were told no
20 and that they've produced whatever Balducci gave them. And
21 there are a couple of things late.
22 And we have received nothing -- no documents from Judge
23 Lackey, no notes, no documents that he provided; and we've been
24 told that there aren't such. So I guess there's not a dispute
25 about that.
Exhibit A
37
1 THE COURT: All right.
2 MR. KEKER: Number 8 is Brady, Giglio. And there,
3 we've given the list that appears on page 10 to specify certain
4 things, including but not limited to those things. But in
5 particular, I wanted to emphasize that we are entitled to know
6 what other cases -- each of these pleas deals with, "you get
7 off on this case and other cases related or unrelated," I think
8 Mr. Langston's plea says.
9 And we are entitled to know what other problems
10 Mr. Patterson, Mr. Balducci, Mr. Langston solved by their
11 guilty pleas and plea agreements. And we think the Government
12 needs to tell us that soon so that we can look into those and
13 see how serious those problems were.
14 THE COURT: Well, what do you say to that,
15 Mr. Sanders?
16 MR. SANDERS: We don't disagree with that, Your
17 Honor. We understand the Brady and Giglio, what is required of
18 us.
19 THE COURT: And you will do that if any exists?
21 THE COURT: Which, I assume some do exist.
22 All right. What's next, Mr. Keker?
23 MR. KEKER: The last one, Your Honor, is the Jencks
24 Act. We've heard terrible things about the practice and the
25 Jencks Act in this district.
Exhibit A
38
1 THE COURT: Terrible things?
2 MR. KEKER: Terrible things from a defense lawyer's
3 standpoint, Your Honor.
4 THE COURT: You mean they follow the law?
5 MR. KEKER: Well, they do things that we believe
6 don't make for a smooth and expeditious and fair enough trial
7 and require defense lawyers to do things that we don't like to
8 do, like ask for a continuance, ask for more time with the jury
9 sitting -- you know the -- I'm not going --
10 THE COURT: I understand.
11 MR. KEKER: -- to give you any argument that you
12 haven't heard from other people before, but we hope that you
13 will urge the Government to give us Jencks in time to make this
14 trial go smoothly. I think there's going to be a lot of it.
15 There's going to be a lot of reading and fussing and maybe
16 investigation, so on.
17 THE COURT: Okay. Well, I can see some statements
18 previously given by the witnesses who will testify that would
19 be given to the grand jury or to an agent that you would want
20 for impeachment purposes.
21 What's your attitude on that, Mr. Sanders, as far as
22 furnishing it in a reasonable time so not as to destroy the
23 effectiveness or try to make your witness tailor his or her
24 testimony toward the previous statements but to allow the trial
25 to run a little more smoothly without having to take a lot of
Exhibit A
39
1 recesses after each witness so they can look over the previous
2 statements of the witness.
3 MR. SANDERS: Yes, sir, Your Honor. That's precisely
4 our reason for wanting to adhere strictly to the law in this
5 instance. This is a case in which the defendants are
6 intelligent, sophisticated defendants and given time and the
7 opportunity, in any case of this type, it concerns the
8 Government that they would be able to tailor their positions
9 and make them consistent with grand jury testimony if it were
10 given in advance, in a disingenuous manner.
11 So it concerns us to provide Jencks -- I think that's
12 precisely why the Jencks Act is -- the language in the Jencks
13 Act provides that we give it to them right after direct. But I
14 understand the Court and the defendant's position on the pace
15 of the trial. I don't think we necessarily object. I think we
16 pretty regularly, as the Court's aware, give it to them before
17 the defendant leaves the stand; but not --
18 THE COURT: You mean before the witness leaves the
19 stand?
20 MR. SANDERS: Before the witness leaves the stand,
21 yes, sir.
22 THE COURT: Before he leaves the stand could be the
23 beginning of his testimony.
24 MR. SANDERS: I'm sorry. After he leaves the stand.
25 I understand. I understand the law says that we don't have to
Exhibit A
40
1 provide to defense counsel a grand jury transcript until after
2 the witness leaves the stand. As the Court's aware, we don't
3 typically adhere to it that rigidly; but we don't believe that
4 we should give it to them --
5 THE COURT: Well, give me a time frame, then. You
6 say "that rigidly." But what? How soon or how long before the
7 witness testifies do you think you could reasonably give it to
8 them?
9 MR. DAWSON: If the Court please, that would vary
10 depending on the particular witness. Some witnesses,
11 obviously, are going to be fairly lengthy, others would not.
12 We intend to provide Jencks material in a reasonable fashion,
13 assuming the defense is likewise reasonable, in an effort not
14 to delay or disrupt the smooth trial process.
15 THE COURT: Well, I understand. I know this has been
16 a -- this is a problem everywhere. It's a balancing test on
17 following the statute and having the trial run smoothly. You'd
18 have the -- how many witnesses do you have that testified
19 before the grand jury, not very many, have you?
20 MR. SANDERS: Very few, Your Honor.
21 THE COURT: Who will be witnesses in the case.
23 THE COURT: Then you have other statements made by
24 the witnesses that may have been recorded or signed, written
25 down.
Exhibit A
41
2 THE COURT: Will there be many of those?
3 MR. SANDERS: Not many at all.
4 THE COURT: Okay. All right, I'll take that under
5 advisement; and we'll talk with the Government's attorneys and
6 the defense attorneys sometime before the trial and resolve
7 that issue. But I don't think -- I tell you now, I will not
8 order them to turn over these statements, you know, ten days or
9 two weeks before the trial, so. We'll get into that later.
10 Yes, sir?
11 MR. TRAPP: Your Honor, one matter that's not on the
12 list, yesterday afternoon we received documents that relate to
13 the jurisdictional element of Title 18, Section 666 as it
14 relates to the $10,000 in federal funds. We got two pages,
15 pages 46 and 47, from the Lafayette County scheduled
16 expenditures. Don't have the other pages. I haven't had an
17 opportunity to really talk and see if they have the complete
18 document. And really, this is for informational purposes.
19 It may be that we would need to issue a subpoena to either
20 county officials or circuit court officials or maybe the
21 administrative office of the courts dealing with this specific
22 issues as it relates to this circuit district and specifically
23 the Lafayette County Circuit Court, which Judge Lackey was the
24 representative under that constitutional office.
25 But is the Court inclined to allow subpoenas to be issued
Exhibit A
42
1 which are specifically targeted to this so that we could get
2 the documents prior to trial and have an opportunity to be in a
3 position to address those issues?
4 THE COURT: Well, I don't think I've ever had this
5 question raised before. And this matter -- jurisdiction of
6 whether or not that section of the code was met is a matter of
7 proof that they've got to put on at the trial to establish
8 jurisdiction or else the trial is gone; the case is gone.
9 MR. TRAPP: I agree with that, Your Honor; but
10 there's also evidence they may not -- they may choose to not
11 look for or introduce which we would want to, to demonstrate
12 that there's not jurisdiction. I just -- really --
13 THE COURT: Well, I mean, if they don't produce it,
14 then they don't establish jurisdiction, that ends the case. So
15 if they don't -- I don't understand why you think they may
16 choose not to look for it.
17 MR. TRAPP: Well, we would like to find out if the
18 Lafayette County Circuit Court gets any federal funds. They've
19 given us a schedule related to the county, and they've circled
20 a particular expenditure. The board of supervisors of the
21 county have an obligation to maintain the courthouse, and the
22 judges can only order them to fulfill their duty or not fulfill
23 it. I don't want to argue that point, but I don't have any
24 reason to believe that they're going to seek that. And the
25 only way I can produce that -- I'd like to be able to get -- or
Exhibit A
43
1 determine if there's any indication of that.
2 And secondly, for example, Your Honor, I would like an
3 opportunity to understand what federal funds come to the
4 county, and then what they do with those in total, in order to
5 address those issues.
6 THE COURT: You mean as far as pretrial matters are
7 concerned?
8 MR. TRAPP: Well, pretrial and perhaps at trial, Your
9 Honor.
10 THE COURT: Well, you certainly have the prerogative
11 to subpoena witnesses to try to disprove that the third circuit
12 court district receives $10,000 or more in federal funds a
13 year.
14 MR. TRAPP: Yes, Your Honor.
15 THE COURT: Sure, you can issue subpoenas for that.
16 But I don't think that would be a matter I want to -- I would
17 authorize subpoenas to be issued for prior to some pretrial
18 hearing.
19 MR. TRAPP: All right. Thank you, Your Honor.
21 All right. Is there anything else, gentlemen?
22 MR. KEKER: Not on the discovery motion, Your Honor.
23 There's a continuance motion as well.
24 THE COURT: Absolutely. You say it's a continuous
25 motion. You mean that they are required to continue to turn
Exhibit A
44
1 over --
2 MR. KEKER: No. The discovery motion, as far as
3 we're concerned, is done. We've had our say. But there's a
4 motion to continue the motions date, which is next Monday, and
5 the trial date, which is February 25th.
6 THE COURT: All right. All right, in view of the
7 fact that the Government has advised the Court this morning
8 that some of this discovery material cannot be or will not, in
9 their best estimation, be produced until January the 30th, the
10 pretrial filing deadline for pretrial motions is extended to
11 February the 7th. Now, of course, Counsel doesn't have to wait
12 until January 30th to start filing your pretrial motions. But
13 I'm giving you a little time after you receive the discovery to
14 file any motions that you feel are proper.
15 MR. KEKER: Your Honor, could we get that weekend and
16 make it the 11th, so we can file them Monday instead of -- I
17 think the 7th is a Thursday. That would give us a couple of --
18 THE COURT: All right. Okay. That'll be granted,
19 February the 11th.
20 MR. KEKER: Thank you.
21 THE COURT: All right. Then the Court will set aside
22 two weeks February the 11th to -- that'll be February 25th to
23 hear those motions, any motions that are filed, if necessary.
24 May not be necessary to hear anything, but in case. All right.
25 Your trial date will be continued, then, from February 25th,
Exhibit A
45
1 which would be -- February 25th is now the last day to hear
2 pretrial motions.
3 MR. KEKER: Your Honor, could I say one thing about
4 scheduling before you do?
6 MR. KEKER: I have a trial in Los Angeles scheduled
7 to begin March 18th. I don't know if it's going to start then,
8 but that's when it's scheduled. It's in federal court, central
9 district of California. It's a civil case, but it's a big
10 case.
11 THE COURT: All right. Well, I was going to wait --
12 I may have to -- I was thinking about putting the trial two
13 weeks after February the 25th. That would go into your trial
14 date. Do you think it's going to definitely go to trial?
15 MR. KEKER: I can't say definitely because I know
16 that there's some -- there's a witness who's sick. There's
17 going to be some motion practice about that, but that's when
18 it's set and that's when -- and certainly nobody's continued it
19 or even moved yet to continue it. And I think it's going to
20 trial in terms of settlement, yes. I mean, I don't think it's
21 going to settle.
22 THE COURT: Yeah.
23 MR. GRAVES: Your Honor, if I may, my name is Todd
24 Graves. I've filed a motion to enter my appearance for Zach
25 Scruggs. I was contacted about this case less than a week ago.
Exhibit A
46
1 There are very legitimate reasons why Mr. Scruggs changed
2 attorneys. We need some time to delve into this. We haven't
3 looked at any of the discovery or had any of the discussions
4 that were previously just talked about.
5 Be happy to go into why Mr. Scruggs -- you know, Mr.
6 Scruggs didn't change attorneys for any reasons of delay; but
7 we believe for him to get a fair trial that we need to have an
8 opportunity to review the evidence, prepare, and file our own
9 motions.
10 THE COURT: Well, you've got from now till February
11 the 25th to look at everything. That's over a month.
12 MR. GRAVES: Well, for us to file motions, we have
13 less -- from what I understand, we have just a few weeks. And
14 before we'd be prepared to do that, we would have to -- things
15 that the Government's looked at for over a year and other
16 defense counsel for a shorter period than that, we would have
17 to start afresh.
18 THE COURT: Well, the material that we're talking
19 about in discovery has just -- is just becoming available to
20 all defense counsel. You're not much further behind them by
21 just coming into the case.
22 MR. KEKER: And, Your Honor, just to remind the
23 Court, it's not before you yet; but the 404(b) notice is
24 literally doubling the case. I mean, if they want to try to
25 prove by clear and convincing evidence what happened down in
Exhibit A
47
1 Jackson in a case involving a judge down there, that's a
2 whole -- that's a second case. I mean, it's just -- it's
3 taking this case and now it's doubled.
4 And there's a lot of witnesses, and we haven't begun to
5 get into that. We don't have discovery about it. We're going
6 to have to investigate it. It's going to be kind of a mess. I
7 think there's a parallel investigation going on.
8 THE COURT: Well, that only comes up if --
9 MR. KEKER: If you grant the motion. I mean -- or if
10 you let them put it in.
11 THE COURT: And even then, I'm not sure that
12 Mr. Langston couldn't just get on the stand and say, "Yes, I
13 did this for Mr. Scruggs on another case."
14 MR. KEKER: But we ought to be able to defend it, I
15 mean, to defend it to show that whatever Mr. Langston says he
16 did, he did for himself or for other reasons. And then there's
17 a lot of witnesses that he worked with, apparently. And
18 there's a judge down there who we read -- I mean, all we know
19 about this is what we read in the newspaper and some
20 conversations we've had with the prosecutors.
21 The judge says nothing bad happened, and that there's
22 some -- it's not just a question of Mr. Langston getting on the
23 stand and being cross-examined and then everybody saying,
24 "Let's forget about it." We need to defend that case just like
25 it were an independent case.
Exhibit A
48
1 THE COURT: Well, that matter will be -- I'll think
2 about that. But anytime a witness comes on the stand and makes
3 a statement about something he's done, I'm not sure that the
4 defendant can -- you want to subpoena witnesses to say he
5 didn't do that. That's certainly in your prerogative but --
6 and you can subpoena them before trial. I'm not sure that
7 discovery is available to you to look into another trial,
8 another case that may or may not come up. I just don't see
9 that.
10 MR. KEKER: Well, you very well may be right about
11 that, which means we have to try that -- I mean, we have to
12 subpoena the witnesses and put them on the stand and have a
13 great old time if --
14 THE COURT: Well, I don't think you have to subpoena
15 them and put them on the stand until you talk to them. You can
16 subpoena them and talk to them, but don't -- I mean, you don't
17 have to wait until you put them on the stand to talk to them,
18 decide if they have anything --
19 MR. KEKER: Unless they're in the Government's employ
20 at this point. In which case, I bet we do have to put them on
21 the stand before we can talk to them. I mean, that's the
22 problem. I don't think these witnesses are going to be leaping
23 up and down to talk to us.
24 THE COURT: Yeah. Well, if I continue this trial
25 date from February 25th -- I'll be willing to do that; but I
Exhibit A
49
1 don't want -- I'm not going to continue it for a long period of
2 time. I want to give you some consideration for your March --
3 did you say 17th, trial date?
4 MR. KEKER: 18th, Your Honor. Could we get a date in
5 April, at least?
6 THE COURT: I don't know. What does the Government
7 say about April, first week in April?
8 MR. SANDERS: Your Honor, I appreciate Mr. Keker's
9 trial schedule, and I also appreciate that there have been some
10 events that have happened over the past couple of weeks that --
11 I understand what Mr. Keker's saying. I don't think we have a
12 problem -- that's the long way of saying it -- with the first
13 week of April, Your Honor.
14 THE COURT: All right, Mr. Graves. Do you think that
15 would be okay with you?
16 MR. GRAVES: I would appreciate it, Your Honor.
17 THE COURT: All right. The Court will set a trial
18 date of -- let me have a calender. Okay. The 31st of March is
19 on a Monday. We'll continue it until that date. I trust you
20 can finish your other case by then?
21 MR. KEKER: We'll see. All right. Thank you, Your
22 Honor.
23 THE COURT: You said it might be a long case. All
24 right.
25 MR. KEKER: Thank you, Your Honor.
Exhibit A
50
1 THE COURT: You're welcome.
2 MR. GRAVES: Can I bring one more matter before the
3 Court?
4 THE COURT: Yes.
5 MR. GRAVES: Both Nathan Garrett, who practices law
6 with me, and I have both filed motions for admission to this
7 Court on behalf of Mr. Scruggs. And those haven't been granted
8 yet. We'd like to ask they be granted.
9 THE COURT: I'm sure they will. I think -- they went
10 to the magistrate judge? Did they? I think they did. Anyway,
11 they'll be admitted. It won't be any problem.
12 MR. GRAVES: Okay. Thank you, Your Honor.
13 MR. KEKER: Judge, in light of the ruling about
14 Mr. Coghlan, could -- I don't know what we're going to do about
15 local counsel, but could we get relief from the rule that
16 requires us to have local counsel in order to file motions and
17 so on?
18 THE COURT: You may.
20 THE COURT: I'm not sure that's a good rule, anyway.
21 But you may have relief from it.
23 THE COURT: All right. Anything else from the
24 Government?
25 MR. DAWSON: No, Your Honor.
Exhibit A
51
1 THE COURT: All right. Gentlemen, thank you very
2 much. I appreciate you working out those discovery matters.
3 And the new trial date is March 31st. Court will be in recess.
4 (THE HEARING ENDED AT 11:16 a.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Exhibit A
52
1 C E R T I F I C A T E
3 I, Rita Davis Sisk, RPR, BCR, CSR #1626, Official Court
4 Reporter for the United States District Court, Northern
5 District of Mississippi, was present in court during the
6 foregoing matter and reported said proceedings
7 stenographically.
8 I further certify that thereafter, I, Rita Davis Sisk,
9 RPR, BCR, CSR #1626, have caused said stenographic notes to be
10 transcribed via computer, and that the foregoing pages are a
11 true and accurate transcription to the best of my ability.
12 Witness my hand, this ____ day of ______________, 2008.
13
14
15 _____________________________________
RITA DAVIS SISK, RPR, BCR, CSR #1626
16 Official Court Reporter
17
18
19
20
21
22
23
24
25
Exhibit A
Motion Hearing 2/20/2008 9:05:00 AM

1 3
1 UNITED STATES DISTRICT COURT 1 INDEX
NORTHERN DISTRICT OF MISSISSIPPI 2
2
UNITED STATES OF AMERICA . Cause No. 3:07CR192 3 Further
3 . Direct Cross Redirect Recross Redirect
Plaintiff . Oxford, Mississippi
4 . February 20, 2008 4
v. . 9:00 a.m. WITNESSES FOR
5 .
RICHARD F. "DICKIE" SCRUGGS . 5 THE GOVERNMENT:
6 DAVID ZACHARY SCRUGGS . 6 Timothy Balducci 25 42 82 86
SIDNEY A. BACKSTROM . 7 William Delaney 112 127 150 154
7 .
Defendants . 158 163
8 ................ 8 171
9 MOTION HEARING
BEFORE THE HONORABLE NEAL B. BIGGERS 174 191 195
10 U.S. SENIOR DISTRICT JUDGE 9
11 APPEARANCES:
12 10
For the Government: United States Attorney's Office 11
13 Northern District of Mississippi
BY: THOMAS W. DAWSON, ESQ. 12
14 BY: ROBERT H. NORMAN, ESQ. 13 THE COURT: Recessed..............................199
BY: DAVID A. SANDERS, ESQ. 14
15 900 Jefferson Avenue
Oxford, Mississippi 38655-3608 15 CERTIFICATE OF COURT REPORTER.............................200
16 16
For the Defendant
17 Richard F. "Dickie" Scruggs: 17
JOHN W. KEKER, ESQ. 18
18 BROOK DOOLEY, ESQ.
JAN NIELSON LITTLE, ESQ. 19
19 TRAVIS LEBLANC, ESQ. 20
WARREN BRAUNIG, ESQ.
20 Keker & Van Nest, LLP 21
710 Sansome Street 22
21 San Francisco, California 94111-1704 23
22
23 24
24 25
25
2 4
1 For the Defendant 1 (CALL TO ORDER OF THE COURT)
David Zachary Scruggs:
2 TODD P. GRAVES, ESQ. 2 THE COURT: All right. We have several motions to
NATHAN GARRETT, ESQ. 3 begin hearing today. Mr. Trapp, you're standing up, I assume
3 Graves, Bartle & Marcus, LLC
1100 Main Street 4 you have something you want to say.
4 Suite 2600 5 MR. TRAPP: I do and I apologize for it. Your Honor,
Kansas City, Missouri 64105
5 816-256-3173 6 I have with me today Mr. Jim Craig, who's a member of the
6 For the Defendant 7 Mississippi bar, long-standing, and a member of our firm. And
Sydney A. Backstrom:
7 FRANK W. TRAPP, ESQ. 8 he will formally file a motion for appearance, should have
JAMES W. CRAIG, ESQ. 9 already done; but that he will be here in connection with
8 Phelps Dunbar
111 East Capitol Street, Suite 600 10 representation of Mr. Backstrom.
9 Post Office Box 23066
Jackson, Mississippi 39225-3066 11 MR. CRAIG: Thank you, Your Honor.
10 601-352-2300 12 THE COURT: Are there any other attorneys present who
11 J. RHEA TANNEHILL, JR., ESQ.
Tannehill & Carmean, PLLC 13 have not filed a motion for acceptance of appearance? I
12 400 South Lamar Boulevard, Suite C 14 noticed -- I heard -- my clerk said yesterday that the -- that
13 Oxford, Mississippi 38655 15 Mr. Scruggs had asked that attorney Mike Moore and a couple of
662-236-9996 16 other new lawyers be seated in. Did you change your mind on
14
15 17 that, Mr. Keker?
16 18 MR. KEKER: It wasn't us, Your Honor.
Court Reporter: Rita Davis Sisk
17 911 Jackson Avenue, Room 369 19 THE COURT: Okay. Somebody called my clerk and said
Oxford, Mississippi 38865
18 (662) 281-3027 20 they would like to sit in at the table, counsel table.
19 21 All right. Previously, the Court had issued an order setting
20
Proceedings recorded by mechanical stenography, transcript 22 the order in which these motions will be heard. I want to
21 produced by computer. 23 change that very slightly. First up will be the motion to
22
23 24 dismiss for reason of outrageous Government conduct. I had,
24 25 secondly, the motion to dismiss Counts 2, 3, and 4.
25
scruggs Unsigned Page 1 - 4

Exhibit B

5 7
1 I want to amend this; and we will hear now, second, the 1 in cases where a criminal defendant has been successful, the
2 motion to suppress the wiretap info and search warrant results. 2 common thread is the Government involvement in the crime was
3 And then we'll go on from there. Who's going to speak for the 3 extensive. And we believe that that's what the evidentiary
4 movants on the motion to dismiss? 4 hearing in this case would show.
5 MR. KEKER: I am, Your Honor, John Keker for 5 There are significant factual disputes on which this
6 Mr. Scruggs and for all the defendants, really, in making the 6 motion rests. The Government alleges that there was a
7 argument. 7 conspiracy to give something of value to Judge Lackey that
8 THE COURT: Very well. You've asked for an oral 8 began in March. The defense denies that that's what happened
9 argument, which I'm giving you; and you've also mentioned the 9 and indeed believes that nothing happened in the way that was
10 Franks hearing, which would involve testimony possibly. Do you 10 criminal or that even was arguably criminal for at least six
11 anticipate wanting to present any testimony on this motion, or 11 months.
12 do you just want to present your argument based on your briefs? 12 The Government argues that Judge Lackey was a victim. The
13 MR. KEKER: No, Your Honor. We have requested 13 defense argues that, as a Government agent under the direction
14 testimony. We believe testimony on this motion would be 14 of the FBI, Judge Lackey aggressively pursued this case and
15 important, indeed the proper way to proceed. 15 Mr. Balducci and tried to inject these defendants into this
16 THE COURT: Very well. All right. The Government in 16 case in a way that was really quite excessive; constantly
17 its brief opposes that. Do you still -- what's your situation 17 calling Balducci, who had never suggested the quid pro quo
18 on it now, Mr. Norman? 18 until Judge Lackey created one.
19 MR. NORMAN: Your Honor, we believe that the 19 So there are myriad, as we pointed out, factual disputes
20 allegations that the defense has made in its written motion -- 20 that we believe the testimony of Balducci, Judge Lackey, and
21 first of all, we, of course, do not agree with those 21 Agent Delaney will help us -- help you to resolve when you look
22 allegations. But if you set aside the conclusions and look at 22 at this, at the Government misconduct motion, to decide whether
23 the specific allegations, our position is that those do not 23 or not this crime was instigated by the Government through
24 rise to the level of a Fifth Amendment due process violation 24 Judge Lackey, whether or not they created this crime, and the
25 even if accepted as true. We, therefore, believe the Court can 25 extent to which Judge Lackey was taking directions from FBI
6 8
1 decide this issue on the briefs. But likewise, we're prepared 1 Agent Delaney.
2 to call witnesses if that is what the Court would prefer. 2 The real issue at this stage, we believe, is whether or
3 THE COURT: What testimony would you anticipate, 3 not we're entitled to a hearing. We are, and we cite the only
4 Mr. Keker, if you -- the Court must make, first, a preliminary 4 other case I need to talk about unless you want to talk about
5 finding that you're entitled to this under the Franks case. 5 some of the others, the Second Circuit case in United States
6 But what testimony, if that is allowed, would you anticipate 6 vs. Cuervelo. I may be pronouncing that wrong. It's a 939
7 presenting? 7 F.2d where the Second Circuit talked about the need for a
8 MR. KEKER: We would request that we will able to 8 hearing in circumstances such as this.
9 call Mr. Balducci, Judge Lackey, Agent Delaney, at a minimum, 9 And it said it cannot be again said that myriad facts and
10 on the hearing on the outrageous Government conduct motion. 10 circumstances can arise in a complex context of what is
11 Could I be heard, Your Honor, about why we think the hearing is 11 commonly frequent and close interaction among Government
12 appropriate? Because that really seems to be a major issue at 12 agents, witnesses, and prospective defendants. A hearing
13 this point. . . 13 allows for search and inquiry into particulars of the
14 THE COURT: (Motioning to podium.) 14 investigative process employed by the Government as the Court
15 MR. KEKER: Okay. Thank you. Your Honor, I am not 15 undertakes to sort through the various conflicting claims and
16 going to cite a lot of cases because I think that the issue has 16 present factual determinations to be made by the district
17 been well briefed and a description of the Government's 17 judge. Hearing also provides the district judge with the
18 misconduct cases have been placed before you. But we did -- we 18 opportunity to observe the demeanor of witnesses and so on.
19 were pleased to come across a case called Slattery v. United 19 Goes on to say that, as a general rule, it is clearly
20 States which was, as you well remember, your case, cited in 20 preferable if such a motion is filed sufficiently in advance of
21 2005, in which the principles that -- the chief principles that 21 trial so that the district judge has a full opportunity to
22 we are asserting are there in the case. 22 decide whether a pretrial hearing is necessary and, if so, the
23 First of all, the test for Government misconduct, as you 23 breadth and extent of the hearing required in order to decide
24 pointed out in Slattery, depends on the totality of the 24 the motion and furnish a sufficient record. We believe that is
25 circumstances. You've got to look at the facts. And second, 25 the situation that faces this Court today. We're prepared to

Exhibit B

9 11
1 proceed with such a hearing. And I believe we're entitled to 1 are recorded, don't say anything about a bribe, don't say
2 it. 2 anything about money, don't say anything about this of counsel
3 THE COURT: Is there not a recording of these 3 position.
4 conversations that you seek to elicit testimony about? 4 And it goes on for six months with Judge Lackey pursuing
5 MR. KEKER: There are recordings of some of the 5 Mr. Balducci, calling him, trying to raise the subject again.
6 conversations. The most critical ones were not recorded. One 6 I think we'll be able to show that by May 9th this was sort of
7 of the interesting things is to find out why. 7 over as far as everybody was concerned. Mr. Balducci had asked
8 The Government alleges that this conspiracy began with the 8 Judge Lackey for a personal favor; Judge Lackey had opined that
9 meeting at the Scruggs Law Firm; of course, unrecorded. At 9 the Scruggs defendants in the Jones case were entitled to
10 that meeting, you've heard from Mr. Patterson, who was present, 10 arbitration.
11 that he didn't have any intent to corruptly influence any judge 11 Nobody had mentioned any bribe or money or anything. And
12 or do anything. He said here when he pled guilty, later on, "I 12 then on the phone -- we could hear it on the tapes -- Judge
13 joined something wrong." I can't remember exactly what he 13 Lackey calls Agent Delaney and says, "What should I do next?"
14 said. You'll recall what he said about that. 14 And whatever Agent Delaney tells him, we don't know until we
15 Our belief is that nobody at that meeting talked about 15 put him on the stand, but what we do know is that Judge Lackey
16 doing anything, except Mr. Balducci said that he would -- and 16 pursued, vigorously pursued, for months, Mr. Balducci.
17 Patterson said he was a great friend of Judge Lackey's; he'd be 17 Mr. Balducci didn't say a word about bribe, about money, about
18 happy to go and try to talk to him and put in a good word about 18 anything.
19 this case. There was no discussion about quid pro quo, which 19 THE COURT: Well, how do you know? You say "you
20 is what is charged, a bribe. There is no discussion of doing 20 know," you do know that Judge Lackey pursued Balducci for
21 anything for Judge Lackey; there is no conspiracy to do 21 months. How do you know that?
22 anything improper. 22 MR. KEKER: Well, you're right in a philosophical
23 It may be unethical for Mr. -- under Mississippi rules or 23 sense. I'm not sure I know anything.
24 under any legal rules, for Mr. Balducci and Judge Lackey to be 24 THE COURT: You haven't talked to either one of these
25 talking about a pending case; but that's not a violation of the 25 witnesses, have you?
10 12
1 federal statutes that are alleged here. And it's not a 1 MR. KEKER: No. But what we've done is looked at the
2 conspiracy to pay a bribe, which is what's alleged. 2 material available to us; the affidavits, the tapes, and so on.
3 Then the next -- and part of that, there's some talk about 3 And what we can see is Judge Lackey -- we see that they are
4 when he retires maybe he could work for Balducci's law firm. 4 recorded. We see it's Judge Lackey calling Balducci, not the
5 We believe that the evidence will be of that unrecorded 5 other way around. Judge Lackey going to visit Balducci, not
6 conversation that we get from Balducci that that wasn't 6 the other way around, at least dropping in on his law firm.
7 something that Mr. Scruggs or anybody else talked about. This 7 No, we haven't.
8 is something that Balducci was doing sort of quite separately. 8 One of the reasons we need to make this factual record
9 There's evidence later on the tapes when Balducci says to 9 through these witnesses is to pin down exactly what I'm telling
10 Judge Lackey, Judge, working for our firm is quite separate 10 you. But I believe, based on what we've seen and the showing
11 from anything we're talking about, about an order or anything 11 that we've made, that we've established at least a prima facie
12 else. 12 case that's exactly what happened. And it wasn't until this
13 Then it goes forward -- we don't know, really, what 13 went on for months with him not doing the judicial act -- he
14 happened between then and May 3rd. But there's another 14 had recused himself, then he unrecused himself -- Balducci
15 unrecorded call. We believe that the evidence is going to show 15 called up and said, "Judge, what are you doing? Why are you
16 that Judge Lackey -- instead of, as Agent Delaney's affidavit 16 recusing yourself? We need you to work this case." He didn't
17 says, at the conclusion of the meeting calling the U.S. 17 do any of that. He unrecused himself, put himself back on the
18 Attorney, we believe the evidence would show that Judge Lackey 18 case, no response -- criminal response from Balducci.
19 spent ten days to two weeks chatting with people about what he 19 Goes on through the summer, pursuing him, asking about
20 should do about this contact by Balducci; and that eventually 20 Dick Scruggs, trying to get Dick Scruggs' name into this thing.
21 he decided to contact the U.S. Attorneys, and the U. S. 21 And then finally, I guess, he lost patience. And then six
22 Attorney's Office wired up his office. 22 months after he had been sitting on an order which he told
23 And notwithstanding that, the next conversation that we 23 Balducci was the appropriate one, and after he's had a hearing,
24 hear about that's supposed to be a problem in the case was, 24 two months have passed; and he still hasn't ruled on a hearing
25 again, unrecorded. And then the conversations after that that 25 that -- this is a motion to send something to arbitration.

Exhibit B

13 15
1 It's not that complicated. They were entitled to it; he said 1 that not once did Balducci return a telephone call to Judge
2 they were entitled to it. 2 Lackey. They allege that Mr. Balducci never once brought up
3 Then in almost what we characterize -- I don't mean to be 3 the question of improperly, unethically, and illegally
4 harsh about this; but at that point, it's almost extortion. He 4 influencing a judge, that it was always the judge who brought
5 said, "What are they going to do for me," to give them the 5 up the Jones matter.
6 order. And, at that -- and Balducci says, "What are you 6 We don't agree with those specific allegations, but those
7 talking about?" And then three days later he said, "How about 7 specific allegations are modest. And in the case cited by
8 $40,000? I'm really in trouble; you're my pal." 8 counsel opposite, the Slattery case tried in this Court with
9 We believe that this proof establishes egregious 9 which this Court is well familiar, the dicta in that case says
10 Government -- not just overinvolvement in criminal activity, 10 the standard of proving an outrageous conduct claim is high.
11 but creation out of whole cloth of the criminal activity. And 11 Cases where defendants have successfully invoked the defense
12 that since the trial of the case is about the defendants and 12 are few. And that is for good reason.
13 not the Government's conduct, the time to deal with the 13 Your Honor, if I could analogize this to a drug case with
14 Government's conduct is now and here. 14 which the Court is well familiar, seeing them every day. When
15 And I'll accept whatever limitations in terms of time or 15 there's a predicate, when there is some reason to believe that
16 whatever you feel are appropriate, or you can see how it goes. 16 an individual is involved in a narcotics trafficking trade,
17 I mean, if you think I'm asking too many questions or not 17 it's the Government's duty to investigate that crime, and
18 getting something that's helpful to you, then I think you 18 that's not entrapment. It is the predisposition that makes
19 probably -- I guess you know how to instruct me. 19 that investigation efficient. Otherwise, the Government would
20 THE COURT: All right. Thank you. Mr. Norman. 20 be investigating cases at great expense and great trouble that
21 MR. NORMAN: Good morning, Your Honor. Our position 21 bear no fruit and have no business being prosecuted.
22 is not an effort to prevent Mr. Keker from hearing the 22 But in this case, it is their position that the Government
23 testimony that he wants to hear. He will hear that testimony 23 attacked the Scruggs Law Firm, without predication and for no
24 and so will the Court when this matter goes to trial. We 24 reason. If that were true, that would be outrageous. But in
25 respectfully submit that this issue can be determined on the 25 this case, what you had was a state judicial officer, not a
14 16
1 briefs and the law, and then the Court will hear the testimony 1 narcotics agent involved in the -- as the Supreme Court said,
2 of all these witnesses. The Court is free, of course, to 2 often competitive enterprise of ferreting out crime -- but a
3 revisit this issue should the Court deem that appropriate, and 3 judicially trained officer of some seniority who came to the
4 that would be the most judicially efficient way, we'd 4 Government and said -- as the Court knows from the pleadings in
5 respectfully submit, to handle this. 5 this case -- "I believe there's a bribery attempt afoot."
6 However, we do disagree fundamentally with the nature of 6 We want to be the first to say, there was no mention of
7 the Government's involvement in this investigation. 7 money at the March 15th meeting of the Scruggs Law Firm when
8 Mr. Keker's allegations are bold. He alleges that the 8 these three defendants were present with Tim Balducci and Steve
9 Government has created a crime, where none existed. He alleges 9 Patterson. These defendants wanted to corruptly influence that
10 that a state circuit court judge hounded a man into committing 10 judge for free. The point is that, months later, when the
11 a crime he would not have committed. And then the Government 11 Judge tested the criminality of this enterprise, everyone
12 turned that individual against an innocent law firm, 12 involved was quick to be willing to pay 40, then $50,000. And
13 implicating them in crimes they had no predisposition to 13 at that point, this ripened into the crime that you have before
14 commit. Outrageous allegations, I admit. 14 you in the indictment. The predication was there.
15 But when you look at, not those conclusions, but the 15 There are two ways to interpret what Tim Balducci said to
16 specific things the defense alleged, they're much more modest. 16 the Court in his initial meeting on May 9th which, by the way,
17 For example, they allege that Judge Lackey pursued 17 is when he said Mr. Scruggs is involved. "Mr. Scruggs wants
18 Mr. Balducci. They allege that seven times he called 18 this done; Mr. Scruggs knows I'm here. There are three people
19 Mr. Balducci. And they allege that Mr. Balducci didn't call 19 that know about this conversation, you, me, and Mr. Scruggs."
20 him back. Of course, as the Court can well imagine, Judge 20 But, Your Honor, at that first meeting, Mr. Balducci
21 Lackey was tape recording phone calls for the Government. 21 attempted to influence the Judge and said, I'd consider it a
22 Balducci was not. It's fairly simple why you don't hear 22 personal favor if you would enter an order in favor of the
23 tape-recorded conversations from Mr. Balducci at that point. 23 Scruggs Law Firm. Illegal by itself? No. Unethical? The
24 But I digress. To go on with this specific allegation, 24 kind of unethical conduct that would get a lawyer disbarred.
25 they allege that Judge Lackey demanded $40,000. They allege 25 But not illegal by itself.

Exhibit B

17 19
1 In that same conversation, however, he mentioned that he 1 conclusions, and you've told me what you know, even though you
2 would be interested in having the Judge become of counsel in 2 haven't talked to them. And -- but is it this first meeting
3 his law firm, a thing this Court knows is a thing of value, 3 that they had with Mr. -- that Mr. Balducci had with Judge
4 where a person gets paid to simply allow his name to be used on 4 Lackey that you want to ask him about? And if that's so, what
5 a firm's letterhead, clearly a thing of value. Did Balducci 5 is it that you want to ask him about that you don't -- haven't
6 consider that a quid pro quo? Frankly, he says not. Did the 6 already heard the prosecutor say happened?
7 Judge think that was a quid pro quo? He thought it was; he 7 MR. KEKER: We -- what I heard the prosecutor say is
8 wasn't sure. 8 that they have a vastly different view of what happened here
9 That's the predication that makes the Government's conduct 9 than we do, based on the evidence that's before us. What I
10 not only lawful but proper and necessary. Because the Judge at 10 heard the prosecutor say is the Judge -- Judge Lackey was
11 that point thought this appeared to be a bribery attempt to 11 reasonable in his understanding of what -- of what he
12 him; he wasn't sure. How do you reasonably determine that? 12 complained about. Perhaps Balducci --
13 You test it. You name a price, and you see what happens. And 13 THE COURT: Specifically, what is it you want to ask
14 you hope -- and this would be the testimony of Judge Lackey -- 14 Balducci about?
15 you hope they don't accept it. You hope you misunderstood. 15 MR. KEKER: I want to ask Balducci about the first
16 But that's not what happened in this case. 16 meeting at the Scruggs office and whether or not there was a
17 THE COURT: Well, do you not consider, as a 17 conspiracy formed as alleged in the indictment to corruptly
18 prosecutor -- or do you consider, as a prosecutor, that the 18 influence this judge by means of paying him with a bribe.
19 offering of a job in a law firm is a thing of value and would 19 That's what's in the indictment. Then I want to ask him when
20 constitute a bribe? 20 he first met with the Judge whether or not he did do anything
21 MR. NORMAN: Absolutely we do, Your Honor. But we 21 other than ask him for a personal favor, whether or not he did
22 were still willing to give the defendants the benefit of the 22 try to bribe him. And then I want to ask him what the Judge
23 doubt and test that and see if we were wrong, to see if we were 23 did to him.
24 misunderstanding. Let's name an arbitrary price; and they may 24 We've heard about this May 9th meeting, the response from
25 say, "You guys are crazy; you misunderstood; or, Judge Lackey, 25 the Government investigating whether or not a crime should be
18 20
1 you misunderstood. You misunderstood my intentions." That 1 further investigated. At the May 9th meeting, Your Honor --
2 would have been the end of this. But that's not the way it 2 let me get it. Once they had Judge Lackey's office all wired
3 happened. 3 up, and they had Mr. -- and they had Judge Lackey listening in
4 And, so, when you look at that sequence of events, I 4 on the meeting with Mr. Balducci, here's what they heard. They
5 respectfully submit that the Government's conduct was not only 5 heard that Judge Lackey tells Balducci that he thinks the Jones
6 reasonable, it was necessary. We would have been derelict in 6 case is entitled to go to arbitration. He wants Balducci to
7 our duty had we not pursued that investigation. 7 get credit where credit is due.
8 Now, can this Court decide that on the facts? We differ. 8 We believe that supports the idea that it was a personal
9 Mr. Keker says you can't. We believe you can. That's up to 9 favor. There's no discussion of bribe; there's no discussion
10 the Court, obviously. If you decide that you want to hear 10 of money; there's no discussion of an of counsel position or a
11 evidence on this matter, our concern is this, we don't have a 11 job. There's no crime. There's no plan to do anything in the
12 problem with the Court hearing this evidence; you'll hear it 12 future. There's no next meeting; and the investigation should
13 eventually anyway. We don't want to see a three-week pretrial 13 have stopped there. There's no evidence to go forward.
14 and then a three-week trial. 14 Instead, what we would like to show is what the Government
15 If the Court wants to hear evidence in this matter, then 15 did. We believe the special agents, at Delaney's direction,
16 we would like to expedite these proceedings as best we can, 16 because Mr. -- Judge Lackey called him immediately after this
17 asking the Court to limit the focus to the allegations set 17 meeting -- is to began to pursue Balducci. That's just been
18 forth in their objection and, to save time, we would shoulder 18 denied, that he pursued Balducci. Judge Lackey's phones are
19 the burden and move forward with the evidence by calling 19 all wired up.
20 Mr. Balducci as our first witness. That's our position, sir. 20 If Balducci calls him, he can push a button, as we
21 MR. KEKER: I have some response if you want to hear 21 understand it, and record a call. There weren't any calls from
22 from me, Your Honor. 22 Balducci. It's Lackey pushing, pushing, pushing. And finally,
23 THE COURT: I'm not sure -- and I wanted to ask you 23 when he says, I tested, six months have gone by and the man has
24 this anyway. What -- I'm not sure what it is that you are 24 not given one whit of a suggestion that he's interested or
25 trying to elicit by this testimony. You've drawn your 25 willing or believes Judge Lackey would be interested in a

Exhibit B

21 23
1 bribe. And Judge Lackey, after six months of this -- well, I 1 something I understand you're -- they're accusing the
2 said it before. 2 defendants of that, but manipulation of the process by the
3 The other thing that has been left out of the Government 3 Government is in some ways even more serious. This is an order
4 misconduct that's in our papers is that when they began to get 4 that the defendants were entitled to it.
5 wiretap applications and make applications to you, they, we 5 Then later, he has a hearing on this motion; and there's
6 believe, seriously misrepresented the statement of the facts. 6 no excuse for not making a decision and ruling like any good
7 Now, they knew that when Balducci finally did pay Judge Lackey 7 judge would. There's a hearing in July, and yet he doesn't
8 a bribe on September 27, Judge Lackey did his best to implicate 8 rule on it. And he goes after -- calling Mr. Balducci, going
9 Dick Scruggs; kept asking, "Mr. Scruggs knows about this?" And 9 to visit him, calling him and so on. And it's not until a
10 Balducci says, "Well, actually he doesn't. He doesn't know 10 couple of months after that that he finally decides -- we
11 about this. The way this works is that sometime I'll tell him 11 believe at the Government's direction -- to, quote, test the
12 I solved the problem for him." 12 waters by insisting on a bribe.
13 Through September 27th -- 13 So for all of those factors, we believe will be
14 THE COURT: Well, are you saying you believe that? 14 illuminated by a hearing; and -- we agree with the
15 MR. KEKER: Well, I sure believe that. Yes, I 15 Government -- it doesn't need to be a long hearing. And we can
16 believe that. But I understand somebody might not believe 16 elicit the testimony that we need, I think, fairly rapidly.
17 that. That's one of the reasons we ought to get a hearing in 17 THE COURT: There's one thing that militates against
18 here. I mean, I think that if the issue is, as you said in 18 your motion, Mr. Keker; and that is that this charge that
19 Slattery, looking at the totality of the circumstances, is the 19 you're making for a dismissal by -- because of outrageous
20 Government overinvolved in creating this crime, then let's find 20 Government conduct, according to the Fifth Circuit's prevailing
21 out. There couldn't be more polar opposites than the 21 law, is available only to those defendants who had only passive
22 Government's position and the defense position on who created 22 roles in the crime and did nothing active in the commission of
23 the crime, where the crime came from, and who is responsible 23 the criminal conduct. That's -- and it's a very strict burden,
24 for this crime. 24 much higher burden than if you were pleading entrapment, as you
25 MR. TRAPP: May I be permitted to supplement? 25 well know.
22 24
1 THE COURT: I'll only hear from one lawyer. 1 MR. KEKER: Yes, sir.
2 Mr. Keker said he was representing all defendants. I'm going 2 THE COURT: But here you're pleading outrageous
3 to hear one argument from one lawyer. 3 Government conduct and asking for a dismissal, even though
4 MR. TRAPP: May I oppose Mr. Keker -- 4 there is evidence before the Court in the form of wiretaps and
5 THE COURT: You gentlemen decide among yourselves who 5 transcripts that your clients did not only play passive roles
6 is pleading for the defendants because I am not going to hear 6 in the commission of this crime, but did active -- played
7 each lawyer from each defendant. 7 active roles in some respects.
8 MR. KEKER: Can Mr. Trapp whisper in my ear for a 8 But I'm not prejudging your motion by telling you that.
9 second, Your Honor? 9 I'm sure you probably already know it. You haven't -- nobody's
10 THE COURT: Yes, he may. 10 mentioned it to me, though. But I will allow you to question
11 MR. KEKER: I just thought of something I should add, 11 Mr. Balducci on three points. One, about the first meeting at
12 Your Honor. 12 the Scruggs Law Firm; secondly, about the first meeting with
13 THE COURT: All right. 13 Judge Lackey with Balducci; and if you want to, you can
14 MR. KEKER: In May -- on this May 21st we were 14 question him about the -- anything he knows about the recusal
15 talking about -- this is after May 9 -- Judge Lackey recuses 15 circumstances. I'm not going to try this case -- if it gets to
16 himself. Then it's really over. He's out of the case. He 16 trial, which I am assuming at this point it will, I'm not going
17 doesn't have anything to do with Jones v. Scruggs. And then 17 to try it twice, as you can well understand.
18 somehow he gets back into the case. 18 MR. KEKER: And can we -- well, we'll do that with
19 He sure didn't do that because Mr. Balducci -- or we -- I 19 Mr. Balducci. Can we leave open whether or not we do that with
20 think we're entitled to look into the Government's role in 20 Judge Lackey as well, depending on what Mr. Balducci says?
21 having him -- in keeping him involved in this situation, talk 21 THE COURT: We can leave it open. I don't foresee --
22 about creating a crime, getting him to come back to a case that 22 I'm not ruling on that at this point.
23 he's recused himself from, or maybe they got him to recuse 23 MR. KEKER: Yes, sir. Got it.
24 himself in the first instance. But this is -- this 24 THE COURT: All right.
25 manipulation of the judicial process by the Government is 25 MR. KEKER: Do you want to accept Mr. Norman's offer

Exhibit B

- -
DAILY COPY DIRECT - BALDUCCI 25 DAILY COPY DIRECT - BALDUCCI 27
1 to put Mr. Balducci on or do you want me to put him on? How do 1 A. Yes, sir.
2 you want to proceed? 2 Q. How do you know him?
3 THE COURT: What do you say to that, Mr. Norman? 3 A. I've known Judge Lackey for my entire legal career. I
4 MR. NORMAN: Your Honor, I believe the ordinary way 4 first met him when I started practicing in Oxford as public
5 of doing things, where we call our witness and they 5 defender. He was the circuit judge who was responsible for
6 cross-examine him, lends itself to a more reasonable 6 hearing the cases in Lafayette and Marshall County where I was
7 presentation. That's what we recommend, sir. 7 public defender, so I tried -- I don't know how many cases --
8 THE COURT: All right. Is he available now? 8 many, many cases in front of him and handled probably thousands
9 MR. NORMAN: Yes, sir. 9 of cases over that period of time in front of him.
10 THE COURT: All right. Let him come in. 10 Q. How would you characterize your relationship with Judge
11 (THE WITNESS IS SWORN) 11 Lackey?
12 TIM BALDUCCI, GOVERNMENT'S WITNESS, SWORN 12 A. Judge Lackey was -- he was a mentor to me. As a young
13 DIRECT EXAMINATION 13 lawyer, he took me in his court, taught me the practice of law
14 THE CLERK: State your name clearly for the record. 14 from the bench, showed me my mistakes, congratulated me on my
15 THE WITNESS: Tim Balducci. 15 successes, counseled me on my failures. We became close
16 MR. NORMAN: May I proceed, Your Honor. 16 friends, not just in a professional sense but more in a
17 THE COURT: You may. 17 personal sense as well; and I really looked up to him.
18 MR. KEKER: Your Honor, could I move so I can see 18 Q. Fast forward now. Are you familiar with a case filed
19 Mr. Balducci? I'm blocked. 19 March 15th in the Circuit Court of Lafayette County,
20 THE COURT: You may. You can sit back there by 20 Mississippi, styled -- approximately styled Jones, et al v.
21 Mr. Craig, if you like. 21 Scruggs, et al?
22 MR. NORMAN: May I proceed, sir. 22 A. Yes, sir.
23 THE COURT: Yes, sir. 23 Q. And do you recall whether or not you were present at a
24 BY MR. NORMAN: 24 meeting sometime between the 15th of March, that being the
25 Q. Good morning, Mr. Balducci. 25 filing date of that case, and the 28th of March, a meeting with
- -
1 A. Morning, Mr. Norman. 1 Judge Lackey; do you know whether or not between those two
2 Q. Would you tell us, please, about your former occupation; 2 dates, somewhere between the 15th and the 28th, you had
3 what have you done for a living most of your adult life? 3 occasion to be present inside the Scruggs Law Firm where there
4 A. Well, for the last 16 years, I've practiced law as an 4 was a discussion involving Jones v. Scruggs?
5 attorney. 5 A. Yes, sir, I was.
6 Q. All right. And can you tell us very briefly what kind of 6 Q. What were the circumstances of that meeting? Were you
7 law you practiced. 7 there to meet about Jones v. Scruggs?
8 A. Yes, sir. Essentially every type of law that there is to 8 A. I did not know when I was asked to come over for a meeting
9 practice. When I first started out practicing law, I did just 9 that that was going to be part of the meeting, no, sir.
10 general, small town law practice; hometown-lawyer-type stuff. 10 Q. Do you recall who was present in attendance at that
11 I was a public defender for Lafayette County and Marshall 11 meeting?
12 County for about six years where I did criminal defense work 12 A. Yes, sir.
13 and also did general civil practice. 13 Q. Who, please?
14 After that, I practiced for about six years doing 14 A. Myself; my business partner, Steve Patterson; Dick
15 primarily insurance defense work representing insurance 15 Scruggs; Zach Scruggs; and Sid Backstrom.
16 companies, billable-hour-type work. And after that, practiced 16 Q. Okay. Do you recall anything of significance being
17 again doing primarily plaintiff's work; the last part of my 17 decided at that meeting?
18 career doing more what we would refer to as mass tort, 18 A. Yes.
19 class-action-type work. 19 Q. What is that?
20 Q. Mr. Balducci -- and I'm trying to keep this brief -- did 20 A. I was asked during that meeting to utilize my personal
21 you ever represent Richard Scruggs, Dickie Scruggs? 21 relationship with Judge Lackey to attempt to corruptly
22 A. Several times. 22 influence him to enter a favorable order in favor of the
23 Q. Okay. As his attorney? 23 Scruggs/Katrina litigation group and the Scruggs Law Firm in
24 A. Yes, sir. 24 the Jones lawsuit.
25 Q. All right. And do you know Circuit Judge Henry Lackey? 25 Q. Who was present at the table --
scruggs Unsigned Page - - -

Exhibit B

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1 MR. KEKER: Excuse me, Your Honor. I object and move 1 Q. Mr. Balducci, give us, to the best of your ability, with
2 to strike the answer as a conclusion. He was asked what was 2 specificity, what was said on this subject and by whom.
3 said and what he gave was his legal conclusion. Sounds a lot 3 A. During the course of the meeting, discussion turned to the
4 like the indictment. 4 Jones v. Scruggs case, and my partner, my business partner,
5 THE COURT: He may explain his answer. The objection 5 Steve Patterson, and I were made aware by the three members of
6 to strike is overruled. 6 the Scruggs Law Firm that Judge Lackey -- well, first of all,
7 BY MR. NORMAN: 7 that the suit had been filed.
8 Q. Do you recall who was present at the table when the 8 They talked generally about the allegations with us that
9 decision was made to ask you to do that? 9 had been made in the case, and then that Judge Lackey was the
10 A. Yes. 10 judge of record on the case. He had, I think, just recently
11 MR. KEKER: Objection, Your Honor, leading. 11 signed an order maybe sealing the court file relative to the
12 THE COURT: Overruled. 12 case. And the initial discussion was about our firm possibly
13 BY MR. NORMAN: 13 representing the Scruggs firm in that lawsuit, in that dispute.
14 Q. Who, please? 14 But that was quickly dismissed.
15 A. The five people that I just mentioned. 15 Then a discussion was had about maybe me serving as some
16 Q. All right. Mr. Balducci, have you ever done anything like 16 sort of go-between, mediator, not formally but just an
17 that with Judge Lackey before? 17 intermediary, because I knew Johnny Jones and Steve Funderburg
18 A. No, sir. 18 well, had worked with them previously in representing
19 Q. And did you realize -- what did you believe to be the 19 Mr. Scruggs in another legal fee dispute in which we were all
20 consequences of approaching a judge under those circumstances? 20 co-counsel, and had a good relationship with them as well.
21 A. Mr. Norman, I knew it to be completely unethical; and I 21 And, so, there was some discussion had about maybe me
22 knew that by doing so that I was risking the loss of my law 22 acting as intermediary, going to Johnny and Steve, seeing if I
23 license. 23 could resolve the case favorably. That discussion then ended,
24 Q. All right. Now, in fairness to the other side, was any 24 and it was then that sort of the real reason for the meeting
25 money mentioned at that meeting? 25 was revealed and that was --
- -
1 A. No, sir. 1 MR. KEKER: Objection, Your Honor. Move to strike
2 Q. In fact, was there any discussion -- a discussion, overt 2 that last conclusion and ask that from now on he say who said
3 discussion, of the crime of bribery -- 3 what rather than talk generally.
4 MR. KEKER: Excuse me, Your Honor. Objection to 4 THE COURT: Well, the objection will be sustained.
5 leading the witness. Could he tell us what happened at the 5 Ask specific questions that call for specific answers in that
6 meeting rather than be led through it? 6 regard, Mr. Norman.
7 THE COURT: He'll be able -- I assume you're going to 7 BY MR. NORMAN:
8 clear that up and explain with specificity what was said. 8 Q. Sir, do you recall who said what? Do you recall who
9 MR. NORMAN: Yes, sir. 9 suggested this course of action?
10 THE COURT: All right. 10 A. Originally, it was suggested by Zach Scruggs. Zach said
11 BY MR. NORMAN: 11 that he was familiar and knew -- it was generally known to
12 Q. Mr. Balducci, while present at that meeting, can you tell 12 those members of the firm my relationship with Judge Lackey.
13 us whether or not money was mentioned? 13 MR. KEKER: Objection, Your Honor. Unresponsive. He
14 A. There was no money mentioned in relation to giving Judge 14 said what?
15 Lackey money in exchange for a favorable order, no, sir. 15 THE COURT: Overruled. He may complete his answer.
16 Q. All right. In fairness, did you believe a crime was 16 THE WITNESS: It was generally known about my
17 contemplated at that time? 17 relationship with Judge Lackey, and Zach was the first one to
18 A. At that time, no, sir. 18 bring that up and asked if I thought it would be possible for
19 Q. Okay. Now, I'd like to fast forward; and we're skipping 19 me to go and have an off-the-record conversation with Judge
20 many things here. But fast forward with me, please, to your 20 Lackey about the case and see if I could persuade him to rule
21 first meeting with Judge Lackey on that subject. 21 in their favor.
22 THE COURT: Now, Mr. Norman, you said you would 22 BY MR. NORMAN:
23 specify what was said at that meeting. You haven't done that. 23 Q. Did anyone veto the idea?
24 MR. NORMAN: All right, sir. 24 A. No, sir.
25 BY MR. NORMAN: 25 Q. How long did the discussion last, if you can approximate

Exhibit B

- -
1 an answer? 1 their position to Judge Lackey. And, so, I did that. I told
2 A. The entire discussion probably -- are you talking about me 2 him what they had told me, essentially, about the case. I knew
3 going to see the Judge ultimately, that discussion, or the 3 very little about it, frankly. What I knew, I had gotten from
4 entire discussion about the Jones case? 4 them. And I told him what I knew and I told Judge Lackey that
5 Q. The discussion regarding the Jones case at the Scruggs Law 5 they -- the members of the Scruggs Law Firm wanted the case
6 Firm on that occasion. 6 ultimately sent to arbitration, that there were some matters
7 A. Best of my recollection, Mr. Norman, the entire discussion 7 that they had been sued now outside of just the legal fee issue
8 was probably 20 minutes. 8 over the Katrina fees. It had now grown into a bigger lawsuit
9 Q. All right. With or without any dissent from any of these 9 than just what their joint venture agreement share of fees
10 three defendants? 10 would be.
11 A. I recall no dissent. 11 And I discussed with Judge Lackey the propriety of him --
12 Q. Okay. Did you then act upon their request? 12 based on that conversation, of him maybe dismissing those
13 A. I did. 13 extraneous matters and sending simply the dispute over the fees
14 Q. Do you recall how you began your task of doing what you'd 14 to arbitration.
15 been asked to do? 15 Q. How did Judge Lackey react?
16 A. Yes, sir. I placed a phone call to Judge Lackey shortly 16 A. While we were together, he never gave me any indication
17 after the meeting and advised him -- I reached him on his phone 17 that he was offended by it or that he felt that what I was
18 and advised him that I had a matter of interest that I wanted 18 doing was improper.
19 to come and see him personally about and talk to him about. 19 Q. Do you recall saying anything that would either lead Judge
20 Q. All right. What was his response? 20 Lackey to believe or lead Judge Lackey not to believe that --
21 A. Fine. Come on. 21 MR. KEKER: Objection, Your Honor. That's leading.
22 Q. And can you approximate the date of that telephone 22 Could we have him just relate what happened, rather than have
23 conversation? 23 the prosecutor lead through it?
24 A. On or about March 28th of last year. 24 THE COURT: Overruled.
25 Q. All right. Did you in fact go see Judge Lackey? 25 THE WITNESS: I know that when we were together --
- -
1 A. I did. 1 THE COURT: Repeat the question. I didn't hear all
2 Q. Do you recall the date? 2 of the question.
3 A. March 28th. 3 MR. NORMAN: Your Honor, I asked Mr. Balducci if he
4 Q. All right. Where did you meet with the Judge? 4 recalled saying anything that would one way or the other either
5 A. I met with Judge Lackey at his office, his personal office 5 indicate to Judge Lackey that others were involved or indicate
6 in Calhoun City. 6 to Judge Lackey that no one else was involved.
7 Q. Would you please tell us about the conversation? 7 THE COURT: All right. You may answer the question.
8 A. Met Judge Lackey there at his office, he welcomed me, 8 THE WITNESS: Yes. I specifically told Judge Lackey,
9 brought me into the anteroom of his office there, which was a 9 as I said, that I was not an attorney in the case; I had no
10 conference room. You know, we exchanged pleasantries for a 10 interest in the outcome of the case; and that I was there on
11 while and discussed just general things, my new law firm, how I 11 behalf of members of Scruggs Law Firm who had asked me to come
12 was doing, talked to him about his health, how he was doing, 12 down there and have that discussion with him.
13 things that were going on politically. He asked me about my 13 BY MR. NORMAN:
14 family, just catching up type of stuff, two old friends sort of 14 Q. All right. Was there any mention of, of counsel?
15 visiting. 15 A. Yes.
16 And then I told him the reason that I'd asked for the 16 Q. How did that come up and what did you say?
17 meeting, and I explained to him that I was there to discuss a 17 A. During the course of the conversation with Judge Lackey,
18 case that was pending before him. And I told him it was the 18 as I said, we talked about a number of things; and toward the
19 Jones v. Scruggs case. And I told him that I was not an 19 end of our meeting and our discussion, I mentioned to him the
20 attorney of record in the case, that I wasn't representing 20 fact that my law firm -- I'd just started my new law firm in
21 either party, specifically not representing the Scruggs Law 21 January, and that we had been fortunate enough to secure
22 Firm; and that I personally had no interest in the outcome of 22 several former judges and other political figures to become of
23 the case; that they had asked me to come down there and to 23 counsel to our firm.
24 basically explain their side of the story to him. 24 And I mentioned to Judge Lackey that he was a close friend
25 They knew that we were friends and wanted me to convey 25 of mine, that we'd known each other and been colleagues for a

Exhibit B

- -
1 long, long time; and I knew that his days on the bench 1 order, or just been notified that Judge Lackey has recused
2 ultimately were numbered. Generally, I knew that he had 2 himself in the case. He said, "What's that about?" You know,
3 wrestled time and time again about how long he was going to 3 "What's going on here?" And I said, "I have no idea. I
4 stay on the bench. 4 haven't spoken to Judge Lackey about it." I did not know that
5 And I told him during the course of that meeting that 5 Judge Lackey was contemplating recusing himself. I said, "I
6 there would come a time I knew that he would retire; that he 6 don't know." He said, "Well, find out. Get ahold of the
7 would hang up his robe, lay down his gavel. And when he 7 situation and find out what's going on, and let us know."
8 decided to do that, that I would be humbled if he would 8 Q. All right. Did you do what you were told to do?
9 consider coming to work in our firm in an of counsel capacity. 9 A. I did.
10 Q. All right. Is that of counsel status anything of value? 10 Q. How?
11 A. Yes, it is. 11 A. I called Judge Lackey.
12 Q. What's it worth? 12 Q. Who called whom?
13 A. Well, not a lot. But the members of my firm who had 13 A. I called Judge Lackey, and then I don't believe I spoke
14 already joined me of counsel, the arrangement I had with them 14 with him then. I think he called me back later.
15 was they got a small monthly stipend of about a $1,000 a month. 15 Q. Okay. Can you recall the gist of that conversation? Can
16 And they had the ability, if they wanted, to work on cases with 16 you tell us who said what?
17 us. I was doing that with a couple of them. They were 17 A. Yes. You know, I opened the conversation by saying, you
18 actively practicing on a few cases with us, and I have just a 18 know, Judge, I understand -- I've been told that you recused
19 separate fee arrangement with them on those specific cases. 19 yourself in the Jones v. Scruggs case. And Judge Lackey said,
20 And then other members of the of counsel crew that were 20 yeah, he said -- he told me a story of having seen one of the
21 part of the firm had lesser roles, and they were really more 21 lawyers from the law firm that was representing Mr. Jones at
22 for marketing and for relationships and business developments. 22 some social function recently, and he said that that lawyer had
23 And they just received a monthly stipend. 23 engaged him in a conversation, an ex parte conversation about
24 Q. Did you intend that as a quid pro quo? 24 the case and essentially was promoting Mr. Jones' side of the
25 A. No, sir, I did not, Mr. Norman. 25 case. And that Judge Lackey felt at that point that he, you
- -
1 Q. Did you know -- are you able to say how Judge Lackey took 1 know, had been influenced, I suppose, you know, improperly; and
2 it? 2 that he felt like he needed to recuse himself.
3 A. Well, I know, now, in retrospect, that that's how it was 3 Q. Did you argue with him?
4 taken. And I can see -- objectively looking back on it, the 4 A. No, sir.
5 course of events and having that discussion within the same 5 Q. Why?
6 context of the discussion with asking him to improperly rule in 6 A. Well, my relationship with him, I thought, was such that
7 the Scruggs Law Firm favor in the Jones case -- I can see how, 7 that's what he said he was doing; and I didn't feel like I was
8 now, in retrospect, Judge Lackey may have interpreted it that 8 in a position to do anything about it.
9 way. It was not my intention, but I can understand how he did. 9 Q. Did you have occasion to report back to anyone in the
10 Q. You can see how Judge Lackey might have interpreted it in 10 Scruggs Law Firm?
11 what way? 11 A. I did.
12 A. That it was a quid pro quo, that I was asking him, "If you 12 Q. With whom did you speak?
13 rule in this manner, then I will give you this job later." 13 A. Well, before that, he had told me during the same course
14 Q. Okay. We've been permitted to ask about one other area, 14 of conversation -- he had said that he thought he had sort of
15 and I'd like to move forward in the summer of 2007. Did there 15 acted maybe precipitously and that he was considering -- you
16 come a time that you learned Judge Lackey had recused himself 16 know, I guess for lack of a better word, unrecusing himself and
17 from the case of Jones v. Scruggs? 17 getting back into the case. And basically, I said, "Look,
18 A. Yes. 18 whatever. Do whatever you think you need to do." And, so,
19 Q. How did you learn of that? 19 that's what I reported after that.
20 A. I received a call from Sid Backstrom advising me of the 20 I called Sid Backstrom back, and I -- I told him that I'd
21 same. 21 had a conversation with the Judge, explained to him what the
22 Q. What did he say; what was his mood? 22 Judge had told me, and also said that the Judge, after
23 A. Frantic and angry. And he said -- when I answered the 23 reflecting on it, thought, Maybe -- well, it's not as big a
24 phone, he said, you know: What's going on? We've just been 24 deal anymore as I thought it was originally. Maybe I acted,
25 advised and just received an order -- I believe he said an 25 you know, hastily. And that the Judge was considering getting

Exhibit B

- -
DAILY COPY DIRECT - BALDUCCI 41 DAILY COPY CROSS - BALDUCCI 43
1 back in. 1 it probably involves all of the Jencks material.
2 Q. All right. What was Mr. Backstrom's response, if you 2 THE COURT: No, I don't think so. Only in regard to
3 recall? 3 what he's just testified about. Do you have that with you,
4 A. Essentially the same thing, "Well, just stay after it, and 4 Mr. Norman?
5 monitor it and keep this thing -- keep this thing on track." 5 MR. NORMAN: I do, Your Honor. What we have is
6 Q. All right, sir. I'd like to summarize now, did Judge 6 considerably broader than that, but I think the quickest thing
7 Lackey hound you in the summer of 2007? 7 to do is provide him with all of it and then object to going
8 MR. KEKER: It's fine with me, Your Honor; but I 8 into other areas.
9 ought to be able to explore the answer. Okay? 9 THE COURT: All right. If you want to do that,
10 MR. NORMAN: I feel sure he will, Your Honor. 10 that's your prerogative to give him everything at this point,
11 THE COURT: All right. 11 if that's what you want to do.
12 THE WITNESS: I'm sorry, Mr. Norman. Did you say 12 MR. NORMAN: Well, for example, Your Honor --
13 hound me? 13 THE COURT: You're not required to.
14 BY MR. NORMAN: 14 MR. NORMAN: I would prefer not to disclose grand
15 Q. Did Judge Lackey hound you over the summer of 2007 about 15 jury transcripts at this point. I do have 302s of Mr. Balducci
16 the Jones case? 16 speaking with the FBI that I'd be happy to produce.
17 A. No, sir. 17 THE COURT: All right. Go ahead. Give it to him.
18 Q. Did Judge Lackey initiate all the communication that 18 MR. KEKER: Thank you, Your Honor. Would it be
19 summer? 19 inappropriate to ask for a ten-minute recess to look at this or
20 A. No, sir. 20 how --
21 Q. Did you ever refuse to return a telephone call to Judge 21 THE COURT: No, it wouldn't be. We'll be in recess.
22 Lackey? 22 You may leave the stand, Mr. Balducci. We'll call you back.
23 A. Mr. Norman, if the Judge called me, I returned his call. 23 We'll be in recess for ten minutes.
24 Q. Did you ever initiate the contact? 24 (AFTER A SHORT BREAK, THE PROCEEDING CONTINUED).
25 A. Yes, I'm certain I did. 25 (CALL TO ORDER OF THE COURT)
- -
DAILY COPY CROSS - BALDUCCI 42 DAILY COPY CROSS - BALDUCCI 44
1 Q. Ever take your boys to see him? 1 THE COURT: All right. Mr. Keker, you may resume.
2 A. On two separate occasions. 2 MR. KEKER: Thank you, Your Honor. Your Honor, I
3 Q. Did he make you commit a crime you didn't want to commit? 3 want to take up, later, when it's convenient, further
4 A. No, sir. 4 discussion about the Jencks material. I think we're entitled
5 MR. NORMAN: Would the Court indulge me briefly? 5 to the grand jury minutes of this as well, but we can do that
6 That's all we have, Your Honor. 6 later.
7 THE COURT: All right. 7 BY MR. KEKER:
8 CROSS-EXAMINATION 8 Q. Mr. Balducci, what was the approximate date of your visit
9 BY MR. KEKER: 9 to the Scruggs Law Firm that you were talking to Mr. Norman
10 Q. Good morning, Mr. Balducci. I'm John Keker, one of the 10 about?
11 lawyers for Mr. Scruggs. 11 A. I'm not certain of the exact date, but it was between
12 MR. KEKER: Your Honor, at this point, I would 12 March 15th and March 28th, '07.
13 request the -- Mr. Balducci's Jencks material on the subject 13 Q. At the time, you went to the Scruggs Law Firm, did you
14 matter on which he's testified. This is a hearing; and under 14 know about the case of Jones v. Scruggs?
15 Rule 26.2(a), we're entitled to the Jencks material. And I 15 A. Generally, yes, sir.
16 would request an opportunity to look at it. But if you want me 16 Q. When you went to the Scruggs Law Firm, what was your
17 to go ahead, I can go ahead and look at it afterwards. 17 purpose in going there?
18 THE COURT: You may have the Jencks material in 18 A. We were having a meeting about some other business matters
19 regard to this area of testimony. 19 that we were conducting with the Scruggs Law Firm.
20 MR. KEKER: Yes, sir. 20 Q. What other business?
21 THE COURT: Not the entire area that he's testified 21 A. I know that we had discussed a project we were working
22 to before any grand jury. 22 together on in Kentucky, and it seems like there were others;
23 MR. KEKER: Fair enough. Yes, sir, I understand 23 but I don't recall.
24 that. Although, I must say those last couple of questions were 24 Q. Was Mr. Buse with you?
25 pretty broad. It's hard to imagine his statements -- I think 25 A. No, sir.

Exhibit B

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1 Q. How long did the meeting last in total? 1 A. Only what I've said so far. Yes, I do remember a general
2 A. Probably about an hour, my best recollection. 2 discussion about the fact that the case had been sealed, and
3 Q. And I think you told us that the discussion about the 3 that Judge Lackey had signed the order sealing it.
4 Jones case took about 20 minutes? 4 Q. Who was the first person to mention your relationship with
5 A. My best recollection, yes, sir. 5 Judge Lackey?
6 Q. Who raised the subject of the Jones case? 6 A. Zach Scruggs.
7 A. I think Mr. Scruggs did, my best recollection. Zach -- 7 Q. Did Steve Patterson talk about your relationship with
8 excuse me, Dick Scruggs. 8 Judge Lackey?
9 Q. Who raised the subject of you going to see Judge Lackey? 9 A. Yes.
10 A. Zach Scruggs. 10 Q. What did he say?
11 Q. Are you sure of that? 11 A. Essentially verifying that I had a long-standing
12 A. Yes, sir. 12 relationship with Judge Lackey.
13 Q. Wasn't Mr. Patterson? 13 Q. What did you say about your relationship with Judge
14 A. No, sir. 14 Lackey?
15 Q. Did you know of any ex parte contact that had occurred 15 A. The same thing, that I did, in fact, as everyone at the
16 with Judge Lackey in the Jones v. Scruggs case before you went 16 table knew, have a long-standing relationship with Judge
17 to this meeting? 17 Lackey.
18 A. No, sir. 18 Q. Did you volunteer to go talk to Judge Lackey about the
19 Q. Did you learn of any ex parte contact at the meeting? 19 case?
20 A. At the meeting? 20 A. Volunteer? I don't know if I'd put it that way. I was
21 Q. Yes. 21 asked to and agreed to.
22 A. At the meeting with Judge Lackey? 22 Q. Do you remember being interviewed by Special Agent Delaney
23 Q. No. With Mr. Scruggs, Mr. Backstrom, Mr. Zach Scruggs, 23 and someone else named Gilbert Surles on November 2nd, 2007?
24 Mr. Patterson. 24 A. Yes, sir.
25 A. I'm sorry, Counselor; I don't understand your question. 25 Q. And do you remember being asked to talk about what
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1 Q. Was there any discussion of how Mr. Tollison had gotten -- 1 happened at this meeting?
2 on behalf of Jones, had gotten the case filed under seal? 2 A. Yes, sir.
3 A. Yes. 3 Q. Did you tell the agents that during the meeting a
4 Q. Tell us what discussion there was and who said it. 4 discussion came up regarding the recent developments in the
5 A. That was essentially the discussion I recall, and I don't 5 civil case involving the Scruggs Law Firm as the defendant and
6 recall who said it; but that the case had been filed; it had 6 Jones as the plaintiffs?
7 been placed under seal; that Judge Lackey was the judge who was 7 A. I'm sorry. I didn't understand that last part of your
8 apparently assigned the case and had signed the order sealing 8 question.
9 the case, is my best recollection. 9 Q. Did you tell the agents on November 2nd that during the
10 Q. And then he signed an order unsealing the case? 10 meeting a discussion came up regarding the recent developments
11 A. I'm not certain if I knew that at that meeting or not. 11 in a civil case involving the Scruggs Law Firm and Jones?
12 Q. Did you know that there was concern about ex parte 12 A. Yes, I did.
13 contacts between Jones' lawyer, Mr. Tollison, and Judge Lackey? 13 Q. And did either Patterson or you ask what the situation was
14 A. I wouldn't phrase it that way. 14 and ask for an explanation about it?
15 Q. How would you phrase it? 15 A. Possibly. I know -- as I said before, I know we discussed
16 A. I remember a discussion about a fear among the members of 16 the general status of the case at that time.
17 the Scruggs Law Firm that Mr. Tollison was going to use that 17 Q. Okay. And did you tell the agents that either Patterson
18 case as a vehicle to draw media attention to the dispute that 18 or you asked about the status of the case?
19 had been filed here in Lafayette County; that it was an attempt 19 A. Well, as I said, the issue of the Jones case was
20 to embarrass Mr. Dick Scruggs and the members of his firm 20 introduced by --
21 locally; and that they were very concerned about that, that 21 Q. Can you answer that question yes or no? If you don't
22 issue. 22 remember, just tell us.
23 Q. Do you remember any conversation from anybody concerned 23 A. Can you repeat the question, please?
24 that Mr. Tollison had approached Judge Lackey ex parte to put 24 Q. Did you tell the agents that either Patterson or you asked
25 the case under seal and at a later date unseal it? 25 what the situation in the case was?

Exhibit B

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1 A. Yes. May I explain? 1 the agent in that first debriefing, and I brought that to their
2 Q. And -- 2 attention later.
3 A. May I explain my answer, Counselor? 3 Q. So later they let you see the 302 that they wrote, and you
4 MR. NORMAN: Your Honor, I believe the witness is 4 corrected it?
5 entitled to explain his answer. 5 A. No. We had a discussion about that. Mr. Keker, I've been
6 THE COURT: He may. 6 debriefed for hours and hours and hours about this case. And
7 THE WITNESS: Yes, I did tell them that; and, as I 7 in one of those subsequent conversations with the agents, that
8 said, the issue had been introduced to Patterson and I by 8 was discussed, that issue was brought up; and I explained to
9 Mr. Scruggs and the other members of the Scruggs Law Firm. And 9 them, "If that's what I said, that's not what I meant. If
10 we did inquire at that point and say, "What's the status; 10 that's what they heard, that's not what I said." What I just
11 what's going on?" 11 told you is what happened.
12 BY MR. KEKER: 12 Q. You said you'd been debriefed for hours. How many hours?
13 Q. Okay. So did they tell you that the matter -- they wanted 13 A. I couldn't tell you, sir.
14 the matter settled through the arbitration, that the plaintiffs 14 Q. How many debriefings?
15 had refused and had now filed this suit? 15 THE COURT: That's not an area we're going to get
16 A. Yes. 16 into.
17 Q. And did -- was it Zach Scruggs that actually informed you 17 MR. KEKER: Yes, sir.
18 that Judge Lackey had been assigned the case? 18 THE COURT: Just answer the question. You don't have
19 A. I don't recall. 19 to --
20 Q. And did you tell them -- tell the agents that you 20 BY MR. KEKER:
21 acknowledged that you knew Judge Lackey, and Dick Scruggs asked 21 Q. So you told them it was not accurate, that Dick Scruggs
22 you if the case could be sent to arbitration? 22 said he was not asking you for anything illegal. And you then
23 A. Did I tell the agents that? 23 met with them on December 14th, 2007; and they told you, Well,
24 Q. Well, first, did it happen? 24 that's what our notes say you said, right?
25 A. Again -- 25 A. Yes.
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1 Q. Dick Scruggs said, Can this case be sent to arbitration? 1 Q. And they told you they weren't going to change the 302
2 A. Can this case be sent to arbitration? 2 because what you were now saying was not consistent with what
3 Q. Yeah. 3 you'd said before, right?
4 A. Words that to that effect, yes, sir. 4 A. That's what they said.
5 Q. And then did you say you didn't know? 5 Q. And they didn't change the 302?
6 A. We had a general discussion, yes, sir, about trying to 6 A. My understanding, they did not.
7 influence Judge Lackey to send the case to arbitration. 7 Q. And they wrote a 302 describing your effort to get them to
8 Q. No. My -- did you tell the agents, then -- I guess let's 8 change the 302.
9 stick to that -- that you said -- when Dick Scruggs said, Could 9 A. It was not my effort to get them to change the 302,
10 this case be sent to arbitration, you said you didn't know? 10 Counselor. It was my recollecting with them and telling them
11 A. Yes, I think I did say that. 11 that I did not agree with what they had written previously
12 Q. And then did Dick Scruggs say he was not asking you for 12 about what I had told them.
13 anything illegal, but would you see if the judge would move the 13 Q. First, tell me if this happened: Dick Scruggs asked you
14 matter to arbitration? 14 to go see Judge Lackey and see if Judge Lackey would be
15 A. Yeah. No, that's not accurate. 15 amenable to moving the case to arbitration.
16 Q. Okay. Did you tell the agents that Dick Scruggs said he 16 A. Correct.
17 was not asking for anything illegal, but could you see if the 17 Q. And then Dick Scruggs said Judge Lackey ought to move the
18 judge will move the matter to arbitration? 18 case to arbitration since it was the correct thing to do?
19 A. I understand that that's what's written in that 302. But 19 A. Correct.
20 I was later interviewed; and in another 302, that statement was 20 Q. And that's what you told the agents and that's what
21 clarified. What I said at the meeting -- excuse me. What I 21 happened?
22 said to the agents was that we didn't discuss paying any money 22 A. Yes.
23 to the judge or bribing the judge at that meeting. We 23 Q. And at the time you had this conversation, you didn't
24 certainly discussed improperly influencing the judge at that 24 think Judge Lackey was the kind of judge that could be bribed,
25 meeting. And I think that that was incorrectly written down by 25 did you?

Exhibit B

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1 A. No, sir. 1 the agreement?
2 Q. You didn't think you were talking about a bribe? 2 A. I didn't know what the agreement was, sir. Again, all
3 A. No, sir. 3 that I knew about the facts or the substance of the case was
4 Q. You didn't think you were talking about anything criminal, 4 what I had been told by them. Based on what they had told me,
5 did you? 5 yes, I thought so.
6 A. Not at the time, no, sir. 6 Q. And you said that Judge Lackey, during this conversation,
7 Q. Mr. Patterson has said that he didn't think anything that 7 didn't do anything to indicate to you that your behavior was
8 happened at that meeting was a corrupt influence -- an effort 8 improper or that he was uncomfortable?
9 to corruptly influence the judge. Do you know about 9 A. That's correct. Nothing I perceived.
10 Mr. Patterson's plea? 10 Q. Tell -- you talked to him about your new law firm?
11 A. I am aware that he's pled guilty, yes, sir. 11 A. Yes, sir.
12 Q. And you agree Mr. Patterson didn't have any intent to 12 Q. Called Balducci Patterson or Patterson Balducci?
13 corruptly influence the judge at that meeting? 13 A. Yes, sir.
14 A. Mr. Patterson can speak for himself on his intent, sir. 14 Q. What is it, which one?
15 Q. Okay. After the meeting at the Scruggs Law Firm, you 15 A. It was Patterson Balducci.
16 called Judge Lackey, asked to come and see him, and then went 16 Q. And in that law firm, you were in the process of -- you
17 down to Calhoun City to his office on May 28th; is that right? 17 have three offices, an office in Washington and one in
18 A. Yes, sir. 18 Mississippi and one in Louisiana?
19 Q. And you talked to him -- how long was that meeting? 19 A. No, sir. Two in Mississippi, one in Oxford, one in New
20 A. Best of my recollection, it was probably 30 to 45 minutes. 20 Albany; and one in Washington.
21 Q. You talked to him about pleasantries, health, politics, 21 Q. And you were signing up dignitaries, including judges, to
22 family, catching up, just like two old friends, I think you 22 be of counsel in your organization?
23 told us? 23 A. I wouldn't classify it as signing up. We had
24 A. Yes, sir. 24 relationships with some former judges and some former
25 Q. And then, finally, you told him that you were here to talk 25 politicians and others that had joined our firm in an of
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1 to him about a case assigned to him that you didn't have any 1 counsel capacity.
2 interest in, Jones v. Scruggs? 2 Q. The -- and at that -- you happened to mention -- tell us
3 A. Yes, sir. 3 why you mentioned to him this of counsel position. How did it
4 Q. And did you tell him that you would consider it -- you 4 come up? Were you talking about your firm?
5 were there to ask for a personal favor? 5 A. Yes, sir. And essentially, what I said on direct, that I
6 A. Yes, sir. 6 knew from having a relationship with Judge Lackey for a long
7 Q. And was that true, you were there to ask for a personal 7 time that he was getting into the twilight of his career; and
8 favor? 8 he was someone that Steve Patterson and I had talked about
9 A. Yes, sir. 9 previously as someone that, as I said, we would be very humbled
10 Q. You weren't there to bribe him? 10 if he would have considered to join us in our law firm. And I
11 A. No, sir. 11 expressed that to him.
12 Q. You weren't there to offer him any quid pro quo? 12 Q. And you were reaching out to him as a mentor and friend?
13 A. No, sir. 13 A. Excuse me?
14 Q. Did you tell him that the allegations that the Jones -- 14 Q. You were reaching out to him as a mentor and a friend, not
15 Mr. Jones had filed in the complaint were vicious and 15 to bribe?
16 slanderous? 16 A. That's correct.
17 A. I think I did. 17 Q. Now, there came a time later, after this March 28th
18 Q. And at that time, did you know that the defendants had 18 meeting, that you learned that Judge Lackey had recused himself
19 filed a motion as of March 19th, a week before, at least a week 19 from hearing the Jones case?
20 before, to move the case to arbitration? 20 A. Yes, I did.
21 A. I'm not certain that I knew the motion had been filed; but 21 Q. And at that point, were you upset?
22 clearly, we had talked about the strategy that the Scruggs Law 22 A. Was I upset?
23 Firm wanted to employ was to have the case moved to 23 Q. Yeah.
24 arbitration. 24 A. No, sir.
25 Q. And did you believe that they had a right to do that under 25 Q. Your work was done?

Exhibit B

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1 A. That's right. 1 conversations, didn't he? He started talking about
2 Q. You had talked to him about the Scruggs firm's position; 2 Mr. Scruggs, "Mr. Scruggs knows about this," and so on?
3 they wanted the case to go to arbitration; you were finished, 3 A. I believe that he did discuss Mr. Scruggs during those
4 right? 4 calls, yes.
5 A. I had done what they asked me to do, yes, sir. 5 Q. And you told him, "Listen, I don't want you to do anything
6 Q. There had been contacts with Judge Lackey during that 6 you aren't comfortable with. I don't want you to do anything
7 interim period between March 28th and the time that -- and the 7 you aren't comfortable with. I respect you too much for that,
8 time in May when you learned he'd recused himself, right? 8 now. But, now, listen, you do what you feel comfortable with,
9 A. I think that's correct, yes, sir. 9 now. I don't -- I'm not -- I don't want you to do anything
10 Q. And during those contacts, you had gone out of your way to 10 that you don't feel comfortable with." That's what you told
11 make sure you didn't want him to do anything that he wasn't 11 him on May 21, right?
12 comfortable with or that wasn't right, right? You'd said that 12 A. I think I did, yes, sir.
13 to him? 13 Q. And then he recused himself.
14 A. I think that we had some conversations where I did use 14 A. I think he had already recused himself at that point. I
15 words to that effect, yes, sir. 15 think he was letting me know that he had recused at that point.
16 Q. And during these conversations, Judge Lackey had said to 16 Q. Well, if I tell you there's nothing in those transcripts
17 you, "Well, it looks like they're entitled to arbitration; it 17 that indicates he's recused himself, will you take my word for
18 looks like both sides agreed to arbitration," right? 18 it; or do you want me to show you the transcripts?
19 A. He did tell me that. 19 A. No. I believe the transcripts are accurate. What I'm
20 Q. So you and he both thought it was the right thing to do, 20 telling you is I don't know in the context of the time frame --
21 which was exactly what the Scruggs Firm happened to want, 21 I know he recused right at the same time as that call; and I
22 right? 22 don't know, as I sit here today, if that call was before he
23 A. Again, Mr. Keker, I don't know what Judge Lackey thought; 23 recused or after. But my best recollection is I talked to him
24 but based on what I had been told by members of the Scruggs Law 24 after he recused because he was suggesting to me he might get
25 Firm, they believed that they had a good position relative to 25 back in.
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1 having the case sent to arbitration. 1 MR. KEKER: Your Honor, what I was referring to on
2 Q. And Judge Lackey seemed to agree with their position that 2 May 21 is Exhibit 13, the Dooley declaration, declaration in
3 they were entitled to arbitration? 3 support of the motion.
4 A. He expressed that to me on one occasion I recall. 4 THE COURT: Well, that's purely hearsay. Just ask
5 Q. And up to this time he recused himself, there had been no 5 him about what he knows; ask this witness about what he knows.
6 discussion about a bribe, a quid pro quo, or anything improper 6 MR. KEKER: Should I show him the transcript and get
7 with Judge Lackey, had there? 7 him to refresh his recollection? I don't want to waste time
8 A. As far as I thought at the time, I had not submitted 8 doing that. Can we have a stipulation?
9 anything to Judge Lackey in the form of a quid pro quo. As I 9 THE COURT: Well, the question is whether Lackey had
10 said on direct, I can see in retrospect what -- how he 10 recused himself before or after the telephone conversation. He
11 misinterpreted what I said about the of counsel position in 11 says he thinks it was before. Do you have anything to
12 that regard; but there was no discussion at that time about any 12 contradict that? You may show it to him.
13 money changing hands, no, sir. 13 THE WITNESS: Let me answer it this way; let me tell
14 Q. And on the day that he recused himself -- which, do you 14 you what I know --
15 recall that was May 21? 15 THE COURT: You just wait until he asks you a
16 A. I think that's correct, yes, sir. 16 question.
17 Q. May 21, 2007. He had been -- we won't use the word hound, 17 MR. KEKER: Your Honor, may I approach the witness --
18 but he had been calling you three times that day, hadn't he? 18 THE COURT: You may.
19 A. I don't recall, Mr. Keker. I do know -- 19 MR. KEKER: -- and show him what the Government has
20 Q. Did he call you at 10:10 a.m.? Can I see that transcript, 20 provided us as transcripts of the May 21st phone call? Look
21 May 21? He called you at 10:10 a.m.; he called you at 2:00, 21 through that and see if that refreshes your recollection of
22 you didn't call him back; finally, he gets you at 4:35 on the 22 whether or not Judge Lackey, on May 21st, told you that he had
23 phone, the day he recuses himself. 23 recused himself.
24 A. I don't dispute what the phone records say. 24 Your Honor, I have a copy for the Court, if you want one.
25 Q. And he tried to implicate Mr. Scruggs in those 25 Exhibit 13 to Mr. Dooley's declaration.

Exhibit B

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1 THE COURT: What page of this transcript do you 1 Q. The whole time you were public defender, thousands of
2 suggest -- 2 cases that you handled before him, you never had ex parte
3 MR. KEKER: I think all pages would indicate that he 3 contact; you sure about that?
4 didn't say anything about recusal in this conversation. That's 4 A. Well, I don't recall any, sir.
5 the point. And the further point is that the time he talked to 5 Q. Did the DA have any ex parte contact?
6 him about recusal and getting back in was actually eight days 6 A. Excuse me?
7 later, on May 29th. 7 Q. Did the DA have any ex parte contact with Judge Lackey on
8 THE COURT: Well, let's don't -- I don't want to take 8 any of the thousands of cases that you handled?
9 the time for this witness to read this whole transcript to see 9 A. Certainly none to my knowledge.
10 if it mentions anything about recusal. He's already said he 10 Q. Now, you were asked -- so on June 4, he unrecuses himself;
11 doesn't know. You don't have to read that. 11 and as far as you're concerned, no crime has been committed at
12 BY MR. KEKER: 12 that point, right?
13 Q. Mr. Balducci, if I told you that the Judge's order 13 A. That's correct.
14 withdrawing his recusal, unrecusing himself, was June 4th, 14 Q. No crime is contemplated. Nobody's thinking about bribing
15 2007, would that refresh your recollection that your 15 Judge Lackey?
16 conversation with him was closer to that order, say around 16 A. Well, we had not discussed at any point paying any money
17 May 29th, which I believe the record shows it is? 17 for the order.
18 A. Mr. Keker, I don't dispute the accuracies of the 18 Q. And then you were asked a question about, Did he hound you
19 transcripts; so they say what they say. I'm just trying to 19 in the summer of 2007. I'd like to ask some -- and you said
20 tell you what my best recollection is. I know we had a 20 no. You remember that?
21 discussion about Judge Lackey considering unrecusing himself, 21 A. I remember that.
22 and I know it was in a short period of time around that time. 22 Q. After he tells you he's unrecusing himself, the next day
23 Q. And did you tell him, during that conversation about 23 you drive up to New Albany to have lunch with him, on May 30th.
24 unrecusing himself, that it would break your heart if "I 24 A. I recall a lunch that I had with Judge Lackey. I can't,
25 thought I put you in a bad position, that's why I told you just 25 as I sit here, recall the exact timing of the sequence.
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1 do what your heart tells you"? 1 Q. Do you remember if it was in approximately late May or
2 A. Yes, I did. 2 early June?
3 Q. All right. Now, the reason for the recusal, apparently, 3 A. I remember it was in the summer.
4 was yet another ex parte contact with Judge Lackey by a member 4 Q. And you drove him to lunch, and you had lunch with
5 of the -- Coker law firm, you said? 5 Mr. Patterson and Mr. Buse; is that right?
6 A. No, sir. 6 A. Yes.
7 Q. Which law firm had chatted with Judge Lackey at a party 7 Q. You drove him back to the office; you looked around the
8 that he said led him to recuse himself? 8 office.
9 A. Judge Lackey told me that he had seen a member of the 9 A. Yes.
10 Tollison Law Firm at a social event and that that member had 10 Q. And was there any discussion of bribe or the Jones case in
11 discussed the Jones case with him and essentially had promoted 11 any regard?
12 Mr. Jones' side of the case to him ex parte. 12 A. No.
13 Q. And Tollison is representing Jones, and Tollison is the 13 Q. And you didn't know he was wearing a body wire during that
14 firm that was representing Jones when they had whatever contact 14 visit?
15 they had with Judge Lackey about sealing the original 15 A. Obviously, no, sir.
16 complaint, right? 16 Q. And then after he was sent -- well, when was the next
17 A. My understanding is that Mr. Tollison represented Mr. 17 contact that you do remember? You said he didn't hound you?
18 Jones throughout. 18 A. As I sit here, I don't remember the specific sequence of
19 Q. And now there is further ex parte contact from the 19 events, Mr. Keker; but I know I had communications with the
20 Tollison firm? 20 judge over the summer. Either he called me or I would call
21 A. Judge Lackey told me that he'd seen a member of their firm 21 him.
22 at a social event and discussed the case. 22 I remember, as I said earlier, two specific instances when
23 Q. Had you had ex parte contact with Judge Lackey in the past 23 he was holding court in New Albany; and both of my sons were
24 on your cases? 24 working for me that summer, and I took them to the courthouse
25 A. None that I recall. 25 to see him on separate occasions.

Exhibit B

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1 Q. And did he make phone calls to you during the summer? 1 A. Sometimes.
2 A. I'm certain he did. 2 Q. You had his cell phone number?
3 Q. How many times did he come to visit you in New Albany? 3 A. Yes.
4 A. I remember the lunch, and I remember him coming to the 4 Q. What did you use his cell phone number for, the judge's
5 office another time. 5 cell phone number?
6 Q. You say that you made phone calls to him? We've got 6 A. To call him.
7 records; we haven't seen any. Do you know where you called 7 Q. Why would you call him -- lawyers don't call judges on
8 him? Did you call him at his office? 8 their cell phone numbers. Why would you call him on his cell
9 A. My understanding is that the Government's surveillance on 9 phone?
10 my phones didn't go up until after that time. 10 A. The times that I called him on his cell phone were related
11 Q. But Judge Lackey, your understanding is, had his whole 11 to this case, to ask him to send this case to arbitration in
12 office wired up, right, and could record -- 12 favor of the Scruggs Law Firm.
13 A. No, I don't have an understanding of that. I know that 13 Q. When did you call him on his cell phone about that?
14 there are some instances where I met with him that are 14 A. Several times.
15 recorded. But as far as his office being wired, I don't know 15 Q. Can you tell us when? We've got all these recordings, but
16 that to be true. 16 we don't have those.
17 THE COURT: Well, let's just -- the question was, Did 17 A. Mr. Keker --
18 you call Judge Lackey during that period of time. 18 Q. Can you give me a month?
19 THE WITNESS: Yes. 19 A. -- there were times where we talked on a cell phone.
20 BY MR. KEKER: 20 That's the best I can tell you.
21 Q. How many times? 21 Q. And he was on his cell phone?
22 A. I'm not certain of the number, but more than once and 22 A. Yes.
23 probably less than ten. 23 Q. Do you remember his number?
24 Q. Did he call you where you didn't return the call? 24 A. It was a 680 number.
25 A. If Judge Lackey called me, I returned the call. I may not 25 Q. And when did he give you that number?
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1 have done it promptly. I may not have done it immediately. 1 A. At one of the times that I met with him in Calhoun,
2 But if Judge Lackey called me, I would not have not returned 2 because we were having a hard time communicating; and he had
3 his call. 3 called me a couple of times, and I wasn't in the office. I had
4 Q. Did he call you on August 27, and you didn't return his 4 called him a couple of times, and he wasn't in the office.
5 call? Call you twice and you didn't return his call? 5 And I asked him at one point to give me his cell phone
6 A. I think I did return his call. He may not have reached me 6 number, and he did. And I remember one time I called him, and
7 when he called me. Mr. Keker, I was practicing law and had 7 I think he told me he was at his shop working. And he called
8 other commitments. I mean, it wasn't a situation where every 8 me back, I think. I think I left him a voice mail, and he
9 time the judge called I dropped everything to talk to him. But 9 called me back later on his cell phone after that.
10 I did communicate with him. 10 Q. So there were -- you believe there were calls with Judge
11 Q. Did he call you twice on August 27 and twice again on 11 Lackey during this period that somehow were not recorded by
12 September 11, and you didn't return any of those calls? 12 Judge Lackey?
13 A. I don't have an independent recollection of that; but if 13 A. I don't know what calls Judge Lackey recorded, sir.
14 that's what the records that you have show, all I can say is if 14 Q. Okay. Before September 18, do you recall Judge Lackey
15 I did return the call -- I'm certain I did, and it must not be 15 raising the subject of money?
16 on the records that you have. 16 A. No.
17 Q. When you called him, what phone did you use to call him? 17 MR. KEKER: Your Honor, I would request to be able to
18 A. I would use any number of phones, Mr. Keker. I'd use my 18 go into the September period to show Judge Lackey's initiation
19 office phone, my cell phone, my home phone. 19 of criminal activity. It's clearly outside what you said I
20 Q. Where did you call? 20 could go into, so I'm requesting you to consider broadening
21 A. Where would I call? 21 your tolerance. I won't spend much time on it.
22 Q. Yeah. 22 THE COURT: Well, what is it specifically you want to
23 A. I would call him primarily at his office and sometimes on 23 go into?
24 his cell phone. 24 MR. KEKER: I want to establish that Judge Lackey
25 Q. On his cell phone? 25 first raised the issue of money, first presented it to

Exhibit B

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1 Mr. Balducci; and I wanted to show the circumstances that at 1 and putting pressure on him?
2 that point this order had been long overdue. Six months had 2 A. I presume.
3 gone by without Judge Lackey doing what everybody recognized 3 THE COURT: Well, let's don't presume. Just testify
4 was the right thing, and it was Judge Lackey who -- 4 what you know, no presumptions.
5 THE COURT: You want to question him about the 5 THE WITNESS: Okay. The judge did tell me that, yes.
6 meeting in September, whenever it was when the money question 6 BY MR. KEKER:
7 first came up? 7 Q. Did he tell you that he had a personal problem?
8 MR. KEKER: Yes, sir. When it first came up and -- 8 A. I'm not certain if he did in that conversation.
9 first it came up about, What can you do for me; and then it 9 Q. Did he tell you in a conversation -- after he said, "If I
10 came up, I want $40,000, those meetings. 10 help them, would they help me," did he tell you to think about
11 THE COURT: How many meetings are you talking about? 11 it and get back to him with what you could do for him?
12 MR. KEKER: I'm talking about there's the 12 A. Yes.
13 September 18 meeting where it's first raised by Judge Lackey, 13 Q. And did you think about it?
14 Will they do something for me? And then September 21 is where 14 A. Yes.
15 Judge Lackey, we believe -- 15 Q. Did you talk to Steve Patterson about it?
16 THE COURT: All right. You may question him about 16 A. Yes.
17 those two meetings in that regard only. 17 Q. And tell us about that conversation; what did you and
18 MR. KEKER: Thank you. 18 Mr. Patterson talk about?
19 BY MR. KEKER: 19 A. We discussed the fact that the judge was clearly telling
20 Q. Do you recall a call from Judge Lackey to you on 20 us that he wanted some money in exchange for entering the order
21 September 18, 2007? 21 for arbitration, and what should we do. The judge had not said
22 A. I do. 22 a specific amount. And Steve and I discussed the fact that I
23 Q. This is about six months after your meeting in the Scruggs 23 needed to go meet with the judge personally to try to find out
24 Law Firm? 24 specifically what he was talking about. And, so, that's what
25 A. Correct. 25 we decided to do, and that's what I did.
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1 Q. And it's two months after the hearing on the motion to 1 Q. You didn't tell anybody at the Scruggs Law Firm about this
2 arbitrate has been argued before Judge Lackey, right? 2 approach before you went to see him?
3 A. That's my understanding. 3 A. No.
4 Q. And it's five months after Judge Lackey has told you that 4 Q. As far as you know, they knew nothing about it?
5 he thinks they're entitled to arbitration? 5 A. That's correct.
6 A. That sounds about right. 6 Q. And, so, you went to see him on September 21st?
7 Q. And in that call, did Judge Lackey say words to the 7 A. I think that's correct, yes, sir.
8 effect, If I help the Scruggs firm, will they help me? 8 Q. And how long was that meeting with Judge Lackey?
9 A. Yes, he did. 9 A. I don't know exactly. I'm going to say approximately 20
10 Q. And what -- were you surprised? 10 or 30 minutes.
11 A. Yes. 11 Q. What did you talk about?
12 Q. Did that seem unlike Judge Lackey to you? 12 A. We talked about the case. We talked about the fact that
13 A. Yes. 13 he said he was in a position that he'd gotten himself into,
14 Q. Did you feel a little awkward being told by a judge who 14 that he needed some money; he needed to get over a hump. And
15 had been sitting on a motion that he ought to have granted that 15 it was something that he had created for himself, and that he
16 he wanted something for it? 16 needed $40,000. And did I think that Mr. Scruggs would give
17 A. Well, the whole thing was a little bit awkward, sir; so 17 him $40,000 if he entered an order that they wanted done.
18 the answer, I guess, is yes. 18 Q. And what did you understand him to mean? You're good
19 Q. And did he tell you during that call that Grady Tollison 19 friends with him, what did he mean, over a hump and gotten
20 was putting pressure on him? 20 himself into a fix? How did you understand him?
21 A. Yes. 21 A. You know, I didn't know specifically. And I -- I just
22 Q. And what did you understand that to mean? Grady Tollison 22 knew it was something personal. You know, I believed the judge
23 was whispering in his ear? 23 when he told me that, and I believed it was certain. And what
24 A. Essentially; that seemed logical. 24 I thought at the time was that Judge Lackey had gotten himself
25 Q. And how -- was he doing that ex parte, chatting with him 25 into some bad position and that he needed some money to get out

Exhibit B

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1 of it; and that he was looking at this issue that I had placed 1 Q. Where'd you get that money? Did you get it out of the
2 before him about signing this order as some avenue to get that 2 bank?
3 money; that's what I thought at the time. 3 A. Yes.
4 And I didn't ask him a lot of questions, sir. I didn't 4 Q. And Judge Lackey, during that conversation, kept asking
5 pry about why he needed the money. I just felt like, you know, 5 you whether or not it was Mr. Scruggs' money, didn't he?
6 he was pouring his heart out to me at the time; and I thought 6 A. Yes. It came up during the conversation, yes.
7 he was sincere. And I thought he had really gotten himself in 7 Q. And you told him it wasn't, right?
8 trouble and needed the money, and he was just trying to use 8 A. I don't think I said it wasn't his money.
9 this case as an avenue to get it. 9 Q. Well, you told him that this was money that you had
10 Q. And you were listening to him and thought he was talking 10 stashed away for a rainy day, didn't you?
11 to you as a mentor, as a friend, as a man in trouble? 11 A. I think so.
12 A. Certainly in part. Now, I understand -- I understood 12 Q. And you told him that this was just between you and him,
13 clearly what he meant. I understood clearly that he was 13 your friend?
14 saying, I need the money; and if you get me the money from 14 A. I think I told him that, yes, sir.
15 Mr. Scruggs, I'll enter this order for it. As I said, I 15 Q. And he kept trying to bring Mr. Scruggs into it and say,
16 thought he had gotten himself into some trouble or some 16 "Well, Scruggs knows about it, doesn't he?"
17 position; and he was viewing this case as an opportunity that 17 A. Right.
18 had arisen to get himself out of the trouble he was in. 18 Q. Kept saying, "I don't want this to be your money; I want
19 Q. Okay. Up to that point, you didn't think that you'd done 19 it to be Scruggs' money," words to that effect?
20 anything that was illegal or committed a crime, did you? 20 A. Words to that effect.
21 A. I didn't think I had done anything that was a crime up to 21 Q. And you finally had to tell him that, "Mr. Scruggs doesn't
22 that point, no, sir. 22 know anything about it"?
23 Q. And now your mentor and your friend is asking you for 23 A. Whatever the transcript says, I don't disagree with it,
24 $40,000 because he's in a personal jam, right? 24 sir.
25 A. Yes. And that he -- 25 Q. And Mr. Scruggs, as far as you were concerned, didn't know
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1 Q. And what was your response? 1 anything about it, did he?
2 A. Told him I'd find out if I could get him the money. 2 A. At that point in time, I'm not sure if Mr. Scruggs had
3 Q. You told him you'd do it, didn't you? 3 gotten the word yet or not. I know that I had had a
4 A. Well, I told him that I felt sure that I could help him, 4 conversation with Mr. Backstrom before then about paying the
5 yeah; and that I'd let him know. 5 judge the $40,000. And I understood in the response from
6 Q. And you responded to him as a friend and as a mentor? 6 Mr. Backstrom that all three of the defendants had talked about
7 A. Well, both. As I said, I believed what he told me. I 7 it and agreed to it, and that I was to go forward and give the
8 believed he was in trouble. But at the same time, I clearly 8 judge the money. But I had not had a personal discussion with
9 understood and I clearly knew that what he was saying was, I 9 Dick Scruggs at that time, no.
10 need $40,000 to enter this order. 10 Q. Or Zach Scruggs?
11 Q. And this is -- 11 A. Or Zach, no.
12 MR. KEKER: There's one more meeting, Your Honor, the 12 Q. You say you had a conversation with Sid Backstrom?
13 27th. Maybe I'll just quit because we've talked about that a 13 A. Yes.
14 lot. The next meeting, the 27th, is when Judge Lackey tries to 14 Q. When was that conversation?
15 draw him out about Scruggs being involved; and he said, 15 A. Immediately after I left the judge's office when he first
16 "Scruggs doesn't know about this." 16 proposed the $40,000 to me.
17 THE COURT: You've got a tape of that. 17 Q. So that'd be on September 21st?
18 MR. KEKER: Yes, sir. 18 A. I think that's correct.
19 THE COURT: You want to ask him about it? 19 Q. And what did you say to Mr. Backstrom?
20 MR. KEKER: I'd like to. 20 A. I told him I'd just met with the judge; and that the judge
21 THE COURT: All right. Briefly. 21 was getting pressured and influenced, it appeared, from some
22 BY MR. KEKER: 22 other places; and that he told me that he was amenable and
23 Q. You went back on September 27 with $20,000 of Patterson 23 wanted to enter the order; but that he needed $40,000 to do it.
24 Balducci money to give to Judge Lackey, right? 24 And I asked Mr. Backstrom, "Is that something that y'all want
25 A. Yes. 25 me to go forward with; and if so, how do you want me to handle

Exhibit B

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1 it? Are y'all going to cover it if I do?" 1 needed to know if he wanted us to solve the problem.
2 Q. Now, you said to Mr. Backstrom that the judge was getting 2 Q. Did Patterson tell you that he had never told P.L. Blake
3 pressure from other places. What had the judge told you about 3 what the problem was?
4 that pressure from other places? 4 A. Yes.
5 A. Just what we discussed earlier, that he was in a bind, and 5 Q. So you'd had this very direct conversation with
6 he needed to get over a hump; and it was, you know, essentially 6 Mr. Backstrom, but Mr. Patterson didn't trust it?
7 a problem of his own creation and -- 7 A. I don't know what he felt. He wanted some direct
8 Q. This wasn't pressure from the Jones side of the case, from 8 confirmation because, frankly, the $40,000 was a big deal to us
9 Mr. Tollison's firm? 9 at the time; and he wanted to make certain that we were going
10 A. Well, I think that he had mentioned once prior to that, 10 to get our money back, that we weren't going to do this and get
11 words to the effect, as you asked me earlier, about Grady had 11 hung out to dry and not get our money back.
12 said something, or Grady was putting some pressure on him as 12 Q. But before -- all right. And just to sum up, before
13 well. 13 September 21, 2007 -- from March through September 21, 2007,
14 Q. And, so, you told Mr. Backstrom that the judge wanted 14 you hadn't committed a crime; you weren't interested in
15 $40,000 for this order? 15 committing a crime; you hadn't discussed with the Scruggs Law
16 A. Yes. 16 Firm committing a crime; is that right?
17 Q. Did Mr. Backstrom say that Judge Lackey sounded crazy? 17 A. Well, in my mind, up until that point, I had not committed
18 A. No. 18 a crime, no, sir.
19 Q. You never remember him saying the situation with Judge 19 MR. KEKER: That's all I have, Your Honor. Thank
20 Lackey and Judge Lackey seems crazy? 20 you.
21 A. No. 21 MR. TRAPP: Your Honor --
22 Q. Did Mr. Backstrom respond to you? 22 (AFTER OFF-THE-RECORD COMMENTS, THE PROCEEDING CONTINU
23 A. He did. 23 MR. KEKER: Well, Your Honor, I can ask him some
24 Q. Okay. And when did he respond to you? 24 questions about what he reviewed to prepare for today, but it
25 A. Called me back later within -- either that day or within a 25 seems to me crystal clear that any grand jury materials or any
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1 day or so after that. 1 other materials, beside the 302s, that constitutes Jencks
2 Q. And said what? 2 material for the subject matter of this testimony should be
3 A. Yes, we want you to go forward. You're covered. Go get 3 given to us at this point.
4 it done. 4 THE COURT: Why?
5 Q. Okay. Now, so you believed the Scruggs Law Firm at that 5 MR. KEKER: Because the rules require it.
6 point knew what Judge Lackey was asking for? 6 THE COURT: What rule?
7 A. Yes. 7 MR. KEKER: In discussion in a hearing on a motion to
8 Q. So there would be no need for you to involve anybody else 8 suppress or a motion like this one, 26.2(a) of the Federal
9 in trying to communicate with the Scruggs Law Firm to get this 9 Rules of Criminal Procedure say that at a suppression hearing
10 Balducci Patterson money? 10 -- and that's been interpreted by the -- I believe the Fifth
11 A. Well, the circumstances were such that when Patterson and 11 Circuit and at least some circuits -- we've got a brief on it
12 I talked about it, we wanted really -- Steve, more than 12 if you'd like to see it, to cover this kind of hearing -- and
13 anything, wanted some direct confirmation from Dick about it. 13 when the Government calls a witness and/or when a law
14 He wasn't satisfied necessarily with my conversation with Sid. 14 enforcement officer testifies, you get the Jencks material
15 So Steve said that he was going to contact P.L. Blake and make 15 that's relevant to the subject matter. I don't think we have a
16 certain that he, Steve, got a direct word from Dick that Dick 16 dispute about this with the Government. Would you like to see
17 wanted us to go forward. 17 a brief on it?
18 Q. And when Mr. Patterson contacted P.L. Blake, he never told 18 THE COURT: I've got the Section 3500 before me.
19 P.L. Blake what you and he needed $40,000 for, did he? 19 MR. KEKER: This is in the Federal Rules of Criminal
20 A. I wasn't privy to their conversation, sir. 20 Procedure, Your Honor. 26.2 provides that after a witness,
21 Q. Did he tell you that he had not told P.L. Blake what you 21 other than the defendant, has testified on direct examination
22 needed the $40,000 for? 22 according to motion of the party who did not call the witness,
23 A. Patterson told me that he told P.L. Blake that we were 23 must order the attorney for the Government and so on. And then
24 working on a problem to solve for Dick, that he wanted us to 24 the 26.2(a) says Rule 26.2 applies to a suppression hearing.
25 solve; and that it was going to cost $40,000; and that we 25 Also 26.2(g) says this rule applies at a suppression

Exhibit B

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DAILY COPY CROSS - BALDUCCI 81 DAILY COPY REDIRECT - BALDUCCI 83
1 hearing. And that the mutual impact of the two rules is once a 1 questioning?
2 Government witness has testified on direct examination at trial 2 A. I do, yes, sir.
3 or at a suppression hearing, the Government, on motion of 3 Q. Sir, when Judge Lackey mentioned the figure, 40,000, to
4 defendant, must produce any statement in possession made by a 4 the best of your recollection, what was your response?
5 witness related to the subject matter of the witness's 5 A. Best of my recollection was, yes, that I would help him;
6 testimony. 6 I'd get it together and would help him.
7 THE COURT: All right. That's -- but the grand jury 7 Q. Okay. Was there any mention of whether or not that would
8 material relates to other matters that he hasn't testified 8 be a problem?
9 about. As I mentioned earlier, to the Government, that they 9 A. I think I said it would not be a problem.
10 would give you the Jencks material about this area of 10 Q. Okay. Was there something that let you believe that would
11 testimony. 11 not be a problem?
12 MR. KEKER: That's all we're asking for. I had the 12 A. Yes, sir.
13 impression that grand jury -- maybe I'm wrong -- that the grand 13 Q. What is that, in very brief terms?
14 jury -- if there's anything in grand jury materials that is 14 A. I had been privy previously to another matter in which
15 relevant to this -- is covered by this subject matter, we're 15 Mr. Scruggs bribed another judge for a favorable outcome in a
16 entitled to it, is our position. 16 case and I was aware of that.
17 THE COURT: They've agreed to give you that. 17 MR. NORMAN: Your Honor, that is the subject of our
18 MR. KEKER: Yes, sir. Okay. 18 404(b) motion and countermotion; and I will leave that at this
19 THE COURT: But not now. We'll wait and do it after 19 point.
20 the hearing today. I don't think there's anything in there 20 BY MR. NORMAN:
21 that will warrant you to get up and cross-examine him again. 21 Q. Did you at any time say, Judge, you misunderstood us?
22 You can take a look at it again. 22 A. No.
23 MR. KEKER: Your Honor, maybe we could get it at 23 Q. Did you at any time say, Judge, that's a crime?
24 lunch or something. 24 A. No.
25 THE COURT: Yes. 25 Q. Did you at any time protest that the Scruggs firm wasn't
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DAILY COPY REDIRECT - BALDUCCI 82 DAILY COPY REDIRECT - BALDUCCI 84
1 REDIRECT EXAMINATION 1 going to be involved in that?
2 BY MR. NORMAN: 2 A. No.
3 Q. Mr. Balducci, I want to cover a few specific things 3 Q. What did you do the moment you left his chambers?
4 brought up by counsel opposite. Beginning with earlier in your 4 A. I called Sid Backstrom.
5 testimony, there was mention of a motion being filed in the 5 Q. Counsel opposite asked you if you spoke personally with
6 Jones case on May 19th. Do you recall that line of 6 Mr. Scruggs about that. Did there come a time, at the Scruggs
7 questioning? 7 Law Firm, when you and Steve Patterson did have occasion to
8 A. Yes. 8 speak with Mr. Richard Scruggs about whether or not you would
9 Q. That brings up this question I'd like to ask: Do you 9 be covered for your $40,000?
10 know, from your personal knowledge, whether or not the Scruggs 10 A. Yes, sir.
11 Law Firm was represented by competent counsel in that case? 11 Q. And what did he say?
12 A. They were. 12 A. He said that he knew that we had talked to P.L. Blake, and
13 Q. Do you know who represented them? 13 that he had talked to P.L. Blake. And he knew that we needed
14 A. The law firm of Daniel Coker here in Oxford. 14 the 40, and that we would be covered and not to worry about it.
15 Q. Did anybody from the law firm of Daniel Coker participate 15 Q. Did you get your 40,000 from the Scruggs Law Firm?
16 in your ex parte meetings with the judge? 16 A. Yes, sir.
17 A. No, sir. 17 MR. NORMAN: Will the Court indulge me?
18 Q. The lunch you had in New Albany with Judge Lackey, did 18 THE COURT: Very well.
19 Judge Lackey attempt to bring you into a conversation about 19 MR. NORMAN: One final couple of questions, if the
20 Jones v. Scruggs? 20 Court would permit.
21 A. No, sir. 21 THE COURT: Very well.
22 Q. Now I want to go to the last line of questioning by the 22 BY MR. NORMAN:
23 defense, I did not ask you about on direct examination, that 23 Q. You said you called Sid Backstrom when you left the
24 being your meeting with the judge, with Judge Lackey on 24 judge's chambers; and to work into that, would you please tell
25 September 21st of 2007. Do you recall that line of 25 me again what you asked him?

Exhibit B

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DAILY COPY REDIRECT - BALDUCCI 85 DAILY COPY RECROSS - BALDUCCI 87
1 A. I advised him that I'd just left a meeting with the judge; 1 influence of Mr. Scruggs' brother-in-law, who was Senator Trent
2 that the judge wanted $40,000 to enter the order compelling the 2 Lott, to put him on the list for consideration of an open
3 Jones case to arbitration. And I asked him, is that what they 3 federal district judgeship.
4 wanted done; did they want to pay the money? And if so, how 4 Q. So we can get it, what do you understand -- Mr. Scruggs
5 did they physically want to do it? Did they want me to pay it? 5 called Mr. DeLaughter and said something?
6 And, if so, were they going to cover me? 6 A. No, sir. Mr. Lott called Mr. DeLaughter.
7 Q. You said they several times. Did you use that plural 7 Q. What are you saying?
8 pronoun? 8 A. I'm saying that Mr. Lott called Judge DeLaughter, at Mr.
9 A. Yes, sir. 9 Scruggs' request, and told him that he was being considered to
10 Q. Who were you referring to? 10 be put under -- or put on the list for consideration for an
11 A. The three defendants. 11 open judgeship in that district; and that that was during the
12 Q. To the best of your ability, tell us what he said in 12 pendency of the case involving Mr. Wilson that was before Judge
13 response. 13 DeLaughter.
14 A. During that conversation, he said, "I'll get back to you. 14 Q. And how do you know that that happened? You talked to
15 Let me find out, and I'll call you back." 15 Senator Lott about that?
16 Q. All right. Did he? 16 A. No, sir.
17 A. He did. 17 Q. How do you know that that happened?
18 MR. NORMAN: Thank you, Your Honor. 18 A. Because I was directly involved in the conversation
19 THE COURT: All right. You may step down. 19 between Mr. Scruggs and Mr. Langston where they were discussing
20 MR. KEKER: Your Honor, he opened a couple of new 20 it, where they discussed that the call would be made; and then
21 matters. Could I just ask him briefly about them? He went in 21 I was privy to conversations after the call was made.
22 and bribed another judge. That's -- I don't think that's true. 22 Q. When was that discussion, the one before?
23 Can I just ask him what he's -- let me make sure we know what 23 A. When?
24 he's talking about because it's -- and then this conversation 24 Q. Yeah.
25 about Dick Scruggs saying he was covered -- 25 A. It was during the pendency of the Wilson case.
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DAILY COPY RECROSS - BALDUCCI 86 DAILY COPY RECROSS - BALDUCCI 88
1 THE COURT: Well, normally, I don't have redirect, 1 Q. Do you remember more specifically than that?
2 Mr. Keker; but I'll give you five minutes to talk to him about 2 A. It would have been around the summer of '06.
3 that. That was only in response to matters that were brought 3 Q. 2006. So June, July, or August 2006?
4 out on cross; but if it wasn't on cross, you could have 4 A. I think the Wilson case -- my best recollection is the
5 objected to it. If it wasn't about a matter brought out on 5 Wilson case was tried in August of '06. So it was shortly
6 cross, you could have objected to it. But since you didn't, 6 before that.
7 they're allowed to get it in. I'll allow you five minutes to 7 Q. Like within a month or two?
8 redirect on those points. 8 A. Yes.
9 RECROSS EXAMINATION 9 Q. Okay. You're sure about that?
10 BY MR. KEKER: 10 A. It's my best recollection, yes, sir.
11 Q. You said you were privy to another matter where Dick 11 Q. Because you were there. So if these conversations didn't
12 Scruggs bribed a judge. What matter are you referring to? 12 happen in June or July, then you're just completely wrong about
13 A. A case involving an attorney named Bob Wilson who had sued 13 this, right?
14 Mr. Scruggs for asbestos and possibly tobacco fees. 14 A. No. No. The conversation -- I think that the call was
15 Q. Was that case pending in Hinds County before Judge Bobby 15 made -- maybe I misunderstood what you were asking. I think
16 DeLaughter? 16 that Senator Lott made the call to Judge DeLaughter sometime in
17 A. It was. 17 the first quarter or so of '06.
18 Q. Was Judge Bobby DeLaughter bribed in that case? 18 Q. And what was Judge DeLaughter supposed to do? What was he
19 A. He was. 19 going to do? You said it was a bribe; what was he going to do?
20 Q. By whom? 20 A. Rule favorably for Mr. Scruggs.
21 A. By Dick Scruggs. 21 Q. On what, some particular motion or just anything that came
22 Q. And was the bribe a money bribe? 22 along?
23 A. No, sir. 23 A. There were several, yes, sir; and it was for a favorable
24 Q. What was the bribe that you're referring to? 24 outcome.
25 A. He was offered a federal judgeship or he was offered the 25 Q. And you know that because you heard Mr. Langston and

Exhibit B

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DAILY COPY RECROSS - BALDUCCI 89 DAILY COPY RECROSS - BALDUCCI 91
1 Mr. Scruggs talking about it? 1 A. Not -- no. Well, yeah, bribe Judge Lackey.
2 A. I know it for a lot more reasons than just that, but, yes. 2 Q. Excuse me?
3 Q. What are the rest of the reasons? 3 A. Yeah, bribe Judge Lackey.
4 A. I was privy to several meetings with Ed Peters where we 4 Q. Other than that, were you going to do any work for
5 discussed strategies about the case, where we previewed filings 5 Mr. Scruggs for the $40,000?
6 in the case, where we were provided with draft copies of orders 6 A. At that time, Mr. Scruggs had not created this cover story
7 that Judge DeLaughter was going to enter in the case. There 7 for me doing this voir dire for him, if that's what you're
8 was a lot of stuff. 8 asking.
9 Q. What did that have to do with this call from Senator Lott? 9 Q. This cover story for voir dire, at some point, did you
10 A. I'm not sure I understand your question. 10 agree to do work on voir dire for a case that was coming up for
11 Q. I'm not sure I understand your answer. What did it have 11 trial; and did Mr. Scruggs pay you $40,000 to do that?
12 to do with what you just said; these meetings, what did that 12 A. I did not agree to do work on the case. We agreed that we
13 have to do -- 13 would cover the $40,000 payment to me in that fashion, yes.
14 A. That was part of implementing the favorable outcome in the 14 Q. Did Mr. Scruggs tell you what P.L. Blake had said you
15 Wilson case. 15 needed the $40,000 for?
16 Q. Are you aware, sir, that the judgeship Judge DeLaughter 16 A. No.
17 was interested in was given to somebody else; by, say, April of 17 Q. Had you told Mr. Scruggs in these various meetings about
18 2006, it was gone? 18 other matters that your firm was a little desperate to get some
19 A. My understanding is that there were about three different 19 money?
20 judgeships that were pending during the Wilson case before it 20 A. Had I told Mr. Scruggs --
21 was tried, and that the last federal judgeship was filled 21 Q. Yeah. You were desperate for money.
22 within just a couple of weeks after the trial; that there 22 MR. NORMAN: Excuse me, sir. I object. We're
23 was -- during the pendency of the Wilson trial, in other words, 23 bringing up a lot of areas that I would now have to ask for
24 there was always an open judgeship on the federal bench. 24 permission to go into to clear up.
25 Q. Did the Wilson trial end in a settlement whereby 25 THE COURT: I realize that, and this has gotten much
- 92
DAILY COPY RECROSS - BALDUCCI 90 1 further than the area of cross-examination; so wrap your -- are
1 Mr. Scruggs paid Mr. Wilson some money? 2 you through?
2 A. He did. 3 MR. KEKER: Yes, sir.
3 Q. How much money did he pay him? 4 THE COURT: All right. Fine.
4 A. My best recollection is that he paid him $3.9 million. 5 THE WITNESS: Your Honor, am I finally excused?
5 THE COURT: Mr. Keker, your time is up. I'll give 6 THE COURT: We'll let you know.
6 you two or three minutes to wrap it up. 7 THE WITNESS: Thank you, sir.
7 BY MR KEKER: 8 MR. KEKER: Your Honor, at this point, we'd request
8 Q. I want to ask you about this Patterson. You said you and 9 that Judge Lackey be called, either as the Government witness
9 Mr. Patterson went and talked to Mr. Scruggs. And he said he
10 or as our witness, either way; but Judge Lackey can fill in how
10 talked to P.L. Blake, and he knew you needed 40. When was that
11 this crime was created.
11 conversation?
12 MR. NORMAN: Your Honor, we believe that this motion
12 A. October 16th.
13 can be decided now. We felt it could be decided on the briefs
13 Q. And where was the conversation?
14 and on the law. I think it can more than be decided now. We
14 A. In Dick Scruggs' personal office in Oxford.
15 can go on and call witnesses for two or three weeks, but I
15 Q. And tell us exactly what was said by him and by you.
16 don't think the Court has time for that; and I think this is a
16 A. That's essentially it. Steve and I were there to meet
17 with Dick on an unrelated matter. He brought us into his 17 good time to cut it off.
18 office; and before we even sat down, he brought it up. I think 18 MR. KEKER: We're not asking for two or three weeks.
19 that he must have thought that's what we were there to talk 19 We're asking for a similar sort of examination of Judge Lackey,
20 about, because he initiated it. And he said, "I know you've 20 which will take an hour, an hour and a half; and we are asking
21 talked to P.L.; and I've talked to P.L. as well. Don't worry. 21 for an examination of Agent Delaney about why his affidavits
22 I know you need the 40; you're covered. It'll be fine." 22 read like they did. Because you read the affidavits and you
23 Q. And what did he say the 40 related to? 23 listen to what happened, they sound like two different worlds.
24 A. He didn't. 24 But we think -- that's three hours' worth of testimony,
25 Q. Well, were you going to do some work for the 40? 25 and we're certainly not asking for two or three weeks. And
scruggs Unsigned Page - - 92

Exhibit B

93 95
1 we'll abide by whatever time limits the Court deems 1 defendants are now charged with and whether the defendants
2 appropriate. 2 themselves did anything to promote that crime and formed any
3 THE COURT: All right. What is it, specifically, 3 elements that constitute that crime. That's what it -- that's
4 that you would want to ask Judge Lackey about? 4 the gist of the motion, that it is involved outrageous
5 MR. KEKER: I want to ask Judge Lackey about pursuing 5 Government conduct.
6 Mr. Balducci after May 9th. We've got the early part from him. 6 And the law requires that in order for such a motion to be
7 But after May 9th, when this was over, and especially after the 7 successful the defendants must not have participated in any
8 recusal -- I mean, what happened to him to chase Balducci 8 active way in the carrying out of the crime. All the evidence
9 through the summer and get this man, whom he considered to be 9 to this point is that they did. So it would seem to the Court
10 his friend and mentee (sic), into this kind of trouble that -- 10 it would be futile to bring in these other witnesses to testify
11 I mean, it -- to establish the Government overinvolvement in 11 about what they did and what the defendants did because the
12 the creation of this crime. 12 defendants are unable, will be unable, to show that they were
13 MR. NORMAN: May I respond briefly? 13 merely passive participants in this crime.
14 THE COURT: You may. 14 It's clear to the Court that they were active participants
15 MR. NORMAN: Your Honor, first of all, we have the 15 in it; and for the defendants to be successful in this kind of
16 man who he says was chased throughout the summer, who has now 16 a motion, the defendants must only be passive actors. And so,
17 testified; and he's testified he wasn't chased. The man who 17 therefore, at this point, I do not see any --
18 pled guilty to that crime and said he did not feel he was 18 MR. GRAVES: Can I be heard?
19 hounded by the judge or chased or caused to commit a crime he 19 THE COURT: Well, Mr. Keker is the one arguing about
20 did not want to commit. 20 this.
21 We can go on and call more witnesses as long as the Court 21 MR. GRAVES: Well, this is a right specifically about
22 would like; but we're not going to change the facts that are 22 my client, Your Honor. I'll defer to Mr. Keker.
23 before the Court and the defense has yet to cite one case that 23 MR. KEKER: May I be heard on the statement of law?
24 makes their allegations sufficient to constitute a due process 24 THE COURT: You may.
25 violation under the Fifth Amendment. 25 MR. KEKER: We don't agree with it, and we don't
94 96
1 MR. KEKER: Well, I won't rise to the bait about 1 think that you agree with it based on the opinions you've made.
2 cases, but the cases talk about the totality of the 2 Yes, you have to balance; and you've said, "Government
3 circumstances. This witness has said some things about calling 3 involvement in the crime is extensive particularly when
4 Judge Lackey that either aren't true or aren't verified by all 4 compared to the involvement of the defendant."
5 the voluminous records that they have, and he's the one -- if 5 In all of the cases that deal with Government misconduct,
6 he was talking to Balducci, while he's under control of the 6 that go up on appeal, the defendant has been convicted of some
7 Government in choosing which conversations to tape and which 7 crime; and the issue is not was the defendant -- did the
8 conversations to recognize on his tape machine, that's 8 defendant do nothing, but was the defendant's involvement in
9 something that I think this Court should take into 9 this crime something because of the Government's conduct that
10 consideration and find out why he's doing that. I suspect 10 violated the due process clause?
11 that's not what he was going to say. I suspect he's going to 11 And the whole point of this hearing is to focus on the
12 say he was a faithful taper, and what we've got is what there 12 Government's conduct to determine if the creation of this crime
13 is. 13 by the Government was so extensive. And then I agree with you,
14 But until we -- all that we have shows him pursuing 14 the cases certainly support how active the defendants were. To
15 Balducci, not the other way around. Balducci doesn't want to 15 hear that the activity was at the end, it's the fruit of the
16 do anything to hurt the Government's case at this point; given 16 poisonous tree argument a little bit.
17 his guilty plea, I think it's understandable, especially his 17 The defendants never had a chance to act if the Government
18 answer, his first answer, which read like he was reciting the 18 misconduct hadn't occurred, because they created and
19 indictment. He attended a meeting in order to corruptly 19 exclusively made up this crime under what I said before was
20 influence the judge. So we'd ask for an hour with Judge 20 sort of extortion circumstances. The judge just sits and sits
21 Lackey, hour, hour and a half. 21 and sits, and then all of a sudden begins to complain about
22 THE COURT: Well, the Court's concerned about -- at 22 personal problems to a friend and so on and so on. So it's a
23 this point, it seems that the motion of the defendants is 23 balance, I agree with that.
24 basically whether Judge Lackey, acting as a Government agent 24 In Slatterly, what you were looking at was, yes, the
25 asking for money from Mr. Balducci, created the crime that the 25 Government involvement there was great; but what you decided

Exhibit B

97 99
1 was, because Slatterly already was off committing the crime 1 disregard for the truth are enough to throw out a search
2 separately and independently before the Government ever got 2 warrant affidavit if they are material to the affidavit. The
3 involved, that, therefore, he wasn't going to be able to win. 3 Tomblin case in the Fifth Circuit says that omissions -- just
4 But all of these cases involve people who have been 4 like under a 1001 jurisprudence, omissions are the same as
5 convicted of a crime; and the focus is on the Government's 5 falsehoods if they make what is said misleading or untrue.
6 conduct, not the defendant's conduct. So that's why we think 6 We need to make a substantial preliminary showing, and I
7 that a little bit more airing out of what the Government did 7 believe we have, that there have been allegations and/or
8 here, what Judge Lackey did, and what Agent Delaney asked him 8 material omissions that are the result of either deliberate
9 to do or told him to do is important for you to give full 9 falsehood or reckless disregard for the truth.
10 consideration to these motions. 10 And then the second thing we have to show is that the
11 THE COURT: Well, I appreciate your argument, but the 11 remaining portion of what's in the affidavit is not sufficient
12 Fifth Circuit has said very clearly at 192, 203 that -- and I 12 to support probable cause. Where, as here, we're dealing with
13 quote -- "The requirement -- this is on a motion for outrageous 13 both falsehoods and omissions, I think you really need to have
14 Government conduct. It says, "Such dismissal of an indictment 14 a hearing to carefully evaluate what's left after you hear from
15 for outrageous Government conduct is proper only in the, quote, 15 the agent what he put in and didn't put in his affidavit and
16 rarest of circumstances." 16 why he did it.
17 "Accordingly, a defendant claiming outrageous conduct 17 If, at the end, a full picture hadn't been provided to the
18 bears an extremely high burden of proof and must demonstrate in 18 independent magistrate exercising his judicial judgment would
19 light of the totality of the circumstances both substantial 19 have led to a different picture, we really can't say. I don't
20 Government involvement in the events and a passive role by the 20 think anybody can say what that judgment would have been.
21 defendants. The requirement that the defendants play only a 21 Here, the picture that would have been shown, had Agent Delaney
22 passive role means that a defendant who actively participates 22 filed an affidavit that was thorough and complete and didn't
23 in the crime may not avail himself of this defense." 23 contain misleading statements, we believe, would have led to a
24 And the Court's of the opinion that to go further with 24 lack of finding and probable cause from the first affidavit on.
25 these other witnesses would not wipe out the clear evidence 25 We're dealing with four affidavits. The first one was
98 100
1 that's before the Court now that there was an active 1 used to get the wiretap on Mr. Balducci's phone on September
2 participation of the other defendants in the carrying out of 2 25, I think is when the order was signed. That is Exhibit 9 to
3 this crime. I'm not judging whether there's proof beyond a 3 Mr. Dooley's declaration. The second one is October 24 --
4 reasonable doubt at this time; I'm talking about preponderance 4 excuse me. Not the October -- the October 16 application.
5 of the evidence; that there was active participation in this 5 That's Exhibit 19 to Mr. Dooley's declaration.
6 crime by these defendants. 6 The October 16 application and affidavit in support of the
7 And, therefore, they are not -- they cannot avail 7 wiretap on Mr. Patterson's home phone. Then there was another
8 themselves of a motion to dismiss the indictment because of 8 Delaney affidavit. And all of these -- some of these are
9 outrageous Government conduct. So for that reason, the motion 9 fairly repetitive. On October 24, to get an extension on the
10 to call any other witnesses is denied, and also the motion to 10 Balducci cell phone wiretap, that's Exhibit 31 to the Dooley
11 dismiss the indictment for that very reason. 11 declaration.
12 All right, gentlemen, I think this will be a very good 12 And then, finally, they got all rolled up into the
13 time to take a noon recess; and we'll be in recess until 1:15. 13 affidavit in support of the search warrant which happened on
14 (AFTER A LUNCH BREAK, THE PROCEEDING CONTINUED). 14 November 26, 2007, which is Exhibit 25 to the Dooley
15 (CALL TO ORDER OF THE COURT) 15 declaration.
16 THE COURT: Mr. Keker, you have another motion? 16 So our view is that we should get Agent Delaney on the
17 MR. KEKER: I do, Your Honor. 17 stand, the person who signed these four affidavits, allow for
18 THE COURT: Second on the list, motion to suppress 18 questioning about why he put in some things that we believe
19 the wiretap info, correct? 19 could be argued very, very misleading and/or downright false;
20 MR. KEKER: Correct, Your Honor. Wiretap and search 20 and why he omitted other things which we think was important to
21 warrant affidavit. 21 the determination of probable cause, to let the judge who
22 THE COURT: Okay. 22 decided these things have a fair picture.
23 MR. KEKER: And this is based on the Fourth Amendment 23 THE COURT: What's the Government's attitude on that?
24 principles enunciated in Franks v. Delaware, which -- where 24 MR. SANDERS: Your Honor, he pointed out -- Mr. Keker
25 willful misstatements and/or statements that showed reckless 25 pointed out that there's got to be a substantial preliminary

Exhibit B

101 103
1 showing that Agent Delaney, in drafting his affidavit, was 1 he's going to continue to try to put the judge at ease, more so
2 intentionally dishonest or acted with reckless disregard to the 2 after Judge Lackey has recused. Obviously, Judge Lackey is
3 truth. He's not -- his motion -- I don't see anything that 3 nervous about this and Balducci wants to put him at ease.
4 suggests Agent Delaney was acting with intentional dishonesty. 4 That's essentially the statements they're referring to with
5 I don't think there's anything in there to suggest he was being 5 Judge Lackey and Balducci.
6 dishonest. Even assuming the Court thought that was a 6 They refer, also, to one where Balducci says, for
7 possibility, they've got to show -- 7 instance, Judge, those are just some ideas that I put down on
8 THE COURT: Well, I don't think it's got to be 8 paper for Your Honor to think about. Those weren't just, you
9 intentionally dishonest. It could be a material 9 know, bullet points, just some ideas for the judge to consider.
10 misrepresentation by negligence or oversight or something else 10 As we pointed out in the affidavit, that was actually the order
11 or leaving something out. 11 compelling arbitration with Judge Lackey's signature line at
12 MR. SANDERS: I think he has to show that it was an 12 the bottom of it. That was Balducci trying to influence the
13 intentional dishonest act or that he acted with reckless 13 judge, very much trying to influence the judge.
14 disregard for the truth and then, also, that that is a material 14 In addition to that, Your Honor, the fact that Balducci
15 misrepresentation. 15 goes to Judge Lackey and is saying, We think it's right,
16 THE COURT: All right. 16 doesn't take away from -- if you're speaking to a judge and
17 MR. SANDERS: The omissions or the alleged 17 trying to influence him in a corrupt manner and eventually
18 misrepresentations, I don't think they've shown under the 18 bribe him, it doesn't matter whether you believe the decision
19 totality of the circumstances, which is what Franks v. Delaware 19 is legally correct or not. That doesn't really have an effect
20 requires, that any of it is material. 20 on it. Balducci is obviously -- all he's trying to do is put
21 Under the totality of the circumstances, what Franks 21 Judge Lackey at ease; and that's what's very, very clear from
22 requires is if you took everything they refer to in their 22 the statements the defendants refer to.
23 motion, everything they refer to as the omissions and what 23 They refer, also, to the Patterson wire. They point out
24 they've referred to as the misleading statements, if you put 24 three different instances that they describe as omissions or
25 every bit of that back into a hypothetical affidavit of what we 25 materially misleading statements. The first one was a
102 104
1 put in the affidavit -- frankly, it's the Government's position 1 September 27th statement that Patterson -- that Patterson's
2 that if we'd attached every transcript of every phone call 2 making to Balducci with respect to P.L. Blake. On September
3 made, there would have been probable cause. 3 the 27th, Patterson was talking to Balducci; and as the
4 Certainly with what they've got here, they've not made any 4 defendants point out, he tells him that P.L. Blake and
5 showing that the Court would -- understanding the statements 5 Patterson discuss this $40,000 problem that they're having.
6 they refer to, most of which are the ones between Balducci and 6 In the middle of that statement, Patterson did say to
7 Lackey, if the Court had been aware of those statements in the 7 Balducci, P.L. doesn't know what it's about. That statement
8 affidavit under the totality of the circumstances, of course 8 was taken out of the affidavit specifically because on October
9 the Court would still have found probable cause. 9 the 16th, when we eventually submitted that affidavit to the
10 The totality of the circumstances they've referred to -- 10 Court, P.L. had already called Patterson back. Patterson had
11 and I can go through a few of these point by point if the Court 11 already called Balducci again and said, "P.L. wants to know now
12 wants me to. They refer to a number of statements where 12 when the judge is going to sign the order."
13 Balducci -- and we heard him this morning talking about it -- 13 The reason that statement was omitted from the affidavit
14 is telling the judge, "I don't want to make you uncomfortable," 14 was because there was probable cause to believe by that time
15 those statements that he's referring to. 15 that P.L. knew precisely what it was about. He'd asked about
16 Obviously, what Balducci was saying to the Court is, as I 16 40,000 back in September. Now on October 10th, he's already
17 said in my response, he is attempting to put the Court at ease. 17 saying: When is the order going to be signed?"
18 He's been asked by the defendants to go to his mentor and do 18 THE COURT: Was that put in the affidavit, that P.L.
19 something highly inappropriate. He's aware of that. He 19 had called him and back and said, When's the judge going to
20 admitted that it was extremely awkward. He's doing that, and 20 sign the order?
21 it's obvious that Balducci is trying to straddle the fence, as 21 MR. SANDERS: I'm sorry, Judge, was --
22 it were. 22 THE COURT: You didn't put in that P.L. doesn't know
23 He wants to offer or say something to Judge Lackey that's 23 what it's about. Did you put in that P.L. now knows what it's
24 extremely inappropriate, but he also wants to maintain at least 24 about?
25 his relationship with Judge Lackey. It's not surprising that 25 MR. SANDERS: Yes, sir. As a matter of fact, in the

Exhibit B

105 107
1 Patterson affidavit, we said that the first call was placed by 1 there were a number of occasions that we pointed to in both
2 Steve Patterson from the target telephone -- the last call was 2 affidavits where the judge specifically referred to the $40,000
3 placed by Patterson. Telephone toll records from the phone 3 and the order being entered in the Scruggs v. Jones case.
4 reflect -- wait a minute. I'm sorry. 4 So in the end, Your Honor, under a totality of the
5 MR. TRAPP: Excuse me. Can you tell us where you are 5 circumstances test, which would include these statements to
6 while you do that, once you get there? 6 which they refer, all the statements that are in the affidavit
7 MR. SANDERS: Yeah, I can. If the Court could 7 already up to and including September the 18th, when Judge
8 indulge me just one second, Judge. I found it. It's in the 8 Lackey asks if they would help him if he helps them, also when
9 affidavit for the Patterson authorization. It's on page 6 in 9 Judge Lackey asks for $40,000 and Tim agrees to it, all of
10 Paragraph 15. We pointed out to the Court that on October the 10 these are to be taken into consideration.
11 10th Steve Patterson placed a call from the target phone to Tim 11 The fact that when he leaves the judge's chambers the day
12 Balducci and requested Balducci to find out when the order 12 that the judge requested the $40,000 he immediately, at 10:08,
13 would be signed. 13 which is the same time Judge Lackey is calling the FBI -- he
14 Balducci asked Patterson if there was a problem with the 14 immediately calls the Scruggs Law Firm. All of these taken
15 deal; and Patterson responds, "P.L. wants to know." That's 15 into consideration, in addition to the statements the
16 precisely why it wasn't mentioned. We felt certainly there was 16 defendants refer to, certainly there would still be probable
17 probable cause by October 16th to feel that P.L. Blake did know 17 cause in such an affidavit. So for those reasons, Your Honor,
18 something about why the 40,000 was being paid. 18 the Government believes there's no reason for an evidentiary
19 They also point to, in their motion, on October 27th a 19 hearing pursuant to Franks v. Delaware.
20 couple of statements Balducci made when he was meeting with the 20 MR. KEKER: May I respond to some of those
21 judge. These are the statements they refer to as gutting the 21 statements --
22 Government's case. These are the statements Balducci made to 22 THE COURT: Would the Government be willing to
23 the judge when he said something to the effect that only he and 23 stipulate that the statements the defendants say were made and
24 the judge knew what was going on. 24 the statements that the defendants say were left out could be
25 Again, this was an affidavit submitted on October the 25 put into a hypothetical affidavit or added to this affidavit,
106 108
1 16th. We knew, however, that on September the 27th what he was 1 and that the Court could look at it and ascertain whether or
2 saying -- when Balducci said, "only he and Scruggs knew about 2 not probable cause existed without having to put testimony in
3 it," we knew when he said it that it wasn't true. That wasn't 3 on it?
4 true. We knew, and it's in the affidavit that on his way over 4 MR. SANDERS: Absolutely, Your Honor.
5 to meet with the judge he was talking to Patterson about it. 5 THE COURT: What do you say to that, Mr. Keker?
6 Also, by October the 10th, he has already mentioned, 6 MR. KEKER: I don't think that's sufficient for the
7 again, that P.L. Blake has called and wanted to know about the 7 Franks standard, Your Honor, for the following reasons --
8 order. We know that Patterson; we know that Blake, at least 8 THE COURT: Well, okay, but I'm just talking about --
9 from a probable cause perspective; we know Mr. Scruggs -- 9 it would be a Franks-type motion -- hearing, but it would just
10 obviously, we performed surveillance, that's also in the 10 be by stipulation of what -- that the testimony you hope to
11 affidavit on September 27; that Balducci leaves the judge's 11 elicit from the agent would be admitted to.
12 chambers and goes straight to the Scruggs Law Firm. These are 12 MR. KEKER: I understand that, Your Honor. And I
13 the reasons that those type statements were left out. We knew 13 still think that it's important that the -- the hearing is
14 he wasn't telling the truth when he said that. 14 important to determine what we've now heard from the
15 Finally, they point to a statement made -- that Balducci 15 Government, that a lot of this -- some of this -- I don't know
16 made to Judge Lackey on October 10th. They are talking on the 16 how much of it -- but was done intentionally, intentionally
17 phone, I believe; and Balducci says they talk about the order. 17 left things out; and are now making arguments about why it is
18 And then at the end of that conversation -- it's a short 18 okay to intentionally leave them out as opposed to meeting some
19 conversation -- Tim says he is going to get back to him about 19 other negligence or reckless standard, that's one thing.
20 that other deal. 20 And second, I think to have Agent Delaney up there to
21 They cite this to suggest that Tim Balducci was unaware 21 explain why, if you had gotten this application on
22 that the $40,000 had anything to do with the order the judge 22 September 25, which is when the order was signed -- it was
23 was going to enter in the Scruggs v. Jones case. I said in my 23 before any bribe had been paid; it was after Judge Lackey had
24 motion, Judge, that based on the totality of the circumstances 24 talked about wanting $40,000.
25 before the Court at that time that that was nonsense; that 25 And if somebody had told you then that what really

Exhibit B

109 111
1 happened in the first meeting was that Scruggs said, "I don't 1 Delaney about why -- what's not in, what's in, and why he
2 want anything illegal, just go talk to your friend, make sure 2 didn't do it. And we think that that would make a suitable
3 that he understands we want arbitration; that there was no 3 record from which you could then rule on this motion and see
4 bribe paid; there was no quid pro quo; that there was no 4 what affected what. Because the first wiretap affects the
5 discussion of any of that; that by the time the wire was up and 5 second wiretap, affects the third wiretap, affects the search.
6 running, there were several times where Balducci made it plain 6 THE COURT: Well, since this -- I think this area of
7 that he wasn't about that, about seeking a bribe or doing a 7 the -- goes to the heart of the case. I'll allow your short
8 bribe or anything like that. 8 examination of Agent Delaney on that area, the wiretap
9 May 9th, May 21, I think the agent can explain why he left 9 information is the gut of the case against these defendants.
10 out completely the recusal business where Judge Lackey just 10 And, so, the motion will be granted to examine Agent
11 walks away from the case; and maybe the agent can tell us 11 Delaney. You say a short examination. I don't know what you
12 whether or not the agent told him to get back on the case. It 12 mean by short, but I would say an hour at the most.
13 left out completely -- it goes from -- as I recall, from May 9, 13 MR. KEKER: What I mean by short is what you tell me
14 it goes to September 18. It leaves out the summer when he's 14 short is.
15 doing all the business that you know he's doing. 15 THE COURT: Well, I think an hour is reasonable.
16 And then they come to you on September 25th with an 16 MR. SANDERS: Your Honor, if the Government could, we
17 affidavit that makes it sound like this is all of the piece. 17 would do the same as we did earlier. If the Court wants us to
18 You read it and, basically, what that affidavit says is 18 do it that way, we will call Delaney ourselves.
19 Balducci came to him, made a corrupt overture; he went right to 19 THE COURT: If that's what you prefer.
20 the U.S. Attorney. False. The corrupt overtures continued. 20 MR. KEKER: And under the same rules, it's clear that
21 False. 21 a Government agent is a Government witness, no matter who calls
22 THE COURT: Or whether it could have been viewed as a 22 them. So if we could get the Jencks Act material now, it would
23 corrupt overture by the person to whom it was made. 23 be helpful so that when the time comes --
24 MR. KEKER: That's another thing that I think Agent 24 THE COURT: It may shorten it up so --
25 Delaney could help us with if he got on the stand. There's 25 MR. KEKER: Yes, sir.
110 -
1 that affidavit, so we deal with that one separately with Agent DAILY COPY DIRECT - DELANEY 112
2 Delaney. And then you sort of think about whether or not that 1 THE COURT: The Government will be instructed to do
3 meets the totality of the circumstances test for, if I -- if 2 that. Again, I'm not ordering that the Government give him all
4 all of this was in there, would there be a different -- and the 3 the prior information, just the statements that he's made
5 reviewing court would have the ability to do it, too. If all 4 concerning this area of his testimony.
6 this were in there, would things have looked different? But 5 MR. SANDERS: Yes, sir, Your Honor. I've already
7 then we go on to the one that's really bad. 6 prepared Jencks with that in mind.
8 On October 16, wouldn't it have been good and aren't we 7 THE COURT: Okay. Good. All right. Call Agent
9 entitled to an explanation of why this agent leaves out all 8 Delaney.
9 (THE WITNESS IS SWORN)
10 this business about P.L. Blake didn't know what this was about?
10 WILLIAM P. DELANEY, GOVERNMENT'S WITNESS, SWORN
11 I understand they've got an argument that, oh, maybe he did
11 DIRECT EXAMINATION
12 later; we changed our mind about that, and completely leaves
12 THE CLERK: State your name clearly for the record,
13 out exculpatory information.
13 please.
14 But most important, all the pushing Judge Lackey did about
14 THE WITNESS: It's William P. Delaney.
15 how Scruggs knows about this, doesn't he? Scruggs is on it.
15 THE COURT: All right, sir, you may proceed.
16 Scruggs knows about what's going on. And he's told no. The
16 BY MR. SANDERS:
17 notion that they think that they can just -- I mean, that that 17 Q. Agent Delaney, if you could, for the record, would you
18 wouldn't affect that Patterson affidavit. And then it gets 18 tell us what you do for a living?
19 repeated again. And then all of this kind of melds together 19 A. I'm a Special Agent with the Federal Bureau of
20 when they come back for the search warrant. 20 Investigation.
21 By that time, they've talked to Balducci; and what he puts 21 Q. And in your position as an agent with the FBI, you had the
22 in that search warrant really doesn't measure up based on what 22 opportunity to investigate a case involving the Scruggs Law
23 Balducci's already telling them. We see that now that we've 23 Firm, the defendants in this case?
24 seen these Balducci statements. 24 A. Yes, I have.
25 So we're asking for, again, a short examination of Agent 25 Q. All right. And was it you who signed the affidavits
scruggs Unsigned Page 109 - -

Exhibit B

- -
DAILY COPY DIRECT - DELANEY 113 DAILY COPY DIRECT - DELANEY 115
1 submitted in this case for authorization for wiretaps and for a 1 Q. All right. And they point specifically to a sentence that
2 search warrant? 2 was not included in the affidavit, and I want to read that
3 A. Yes, I was. 3 sentence they're pointing to. They said that Tim said, "Here's
4 Q. When did you sign those affidavits? 4 just some thoughts, ideas, and suggestions I thought I'd put on
5 A. I signed the first affidavit September 25th, 2007; the 5 paper to see if His Honor might be interested in." Do you
6 second one October 16th, 2007; and I believe the last one 6 remember Balducci saying that?
7 November 26th, I believe, 2007. 7 A. Yeah, I remember that from the recording, yes, sir.
8 Q. When was the extension for the Balducci wiretap; do you 8 Q. All right. Why was that not included in your affidavit?
9 know? 9 A. I didn't give much weight to that considering what had
10 A. I think it was the same day. I think it was October 16th. 10 happened earlier in the day when Mr. Balducci had, unsolicited,
11 Q. Could it have been October 24th? 11 faxed an order to the judge in his office; and the order had a
12 A. Yes. 12 signature line at the bottom. To me, it seemed more --
13 Q. Okay. I want to ask you -- you're familiar with this. 13 obviously, Mr. Balducci was more interested in having the judge
14 There's a motion been filed pursuant to Franks v. Delaware. 14 sign and enter that order than just trying to give him some
15 And the defendants have filed a motion pointing to specific 15 thoughts and ideas about the case.
16 portions of conversations you left out of the affidavit. What 16 Q. All right. I want to move now to May the 9th. Did
17 I want to do is I want to walk through the sentences to which 17 Balducci and Lackey speak together on May the 9th?
18 they refer, and I'm going to ask you why you left these out. 18 A. Yes, they did.
19 Do you understand? 19 Q. All right, sir. I'm going to read to you, again, a
20 A. Yes, sir. 20 statement made during that conversation to which the defendants
21 Q. All right. Specifically, the defendants initially state 21 refer. They said that Balducci asked Judge Lackey whether he
22 that you drafted in your affidavit that Judge Lackey called the 22 thought the parties ought to arbitrate; and Judge Lackey said,
23 Government at the conclusion of his first meeting with Tim 23 according to the defendants, "It does; it looks like that's
24 Balducci. Was that accurate? Was it after the meeting had 24 what they agreed to." Is that -- do you remember that
25 concluded? 25 statement being made?
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1 A. That was my understanding, yes. 1 A. Yes, I do.
2 Q. Okay. What do you mean by, that was my understanding? 2 Q. All right. And tell the Court why you left that
3 A. The way I was involved in this, my supervisor called me 3 particular statement out.
4 that the U.S. Attorney's Office in Oxford had been notified of 4 A. Well, prior to the judge making that particular statement,
5 this event and asked me to contact him. He gave me the 5 he had actually told Mr. Balducci how he thought the case would
6 impression that Judge Lackey had been approached by an attorney 6 go. And in that instance, he thought the case would go to the
7 inappropriately, and he asked me to look into it. I then 7 State Supreme Court. Mr. Balducci said, "Well, let me give you
8 contacted the U.S. Attorney's Office. They basically gave me 8 my thoughts and ideas about it." He then went on a fairly long
9 the same information. 9 explanation as to how he saw the case and how he thought it
10 Shortly thereafter, I contacted Judge Lackey, interviewed 10 should go. At the end of which, he said, "I think it should go
11 him in person; and he gave me the same impression; that 11 to arbitration, don't you, Judge?" And the judge said, "Well,
12 Mr. Balducci had approached him, called him, come down to visit 12 I agree"; but he never gave a definitive answer that that's how
13 with him, made inappropriate overtures to him. And shortly 13 he truly thought, and that's what he was going to do.
14 thereafter, he contacted the U.S. Attorney's Office. 14 Q. Okay. All right. And then one more statement he made
15 Q. And do you know ow now how long after it was that he 15 on -- or to which the defendants refer, on May the 9th, that
16 contacted the U.S. Attorney's Office? 16 Judge Lackey told Balducci he was -- he wanted to make certain
17 A. My understanding now is it'd been two weeks. 17 he was, quote, "going to get credit for the order." Do you
18 Q. Okay. They also point out on May the 4th -- and by the 18 remember whether Judge Lackey said that?
19 way, you were familiar with the phone call that Judge Lackey 19 A. Yes, that was in the conversation.
20 had with Mr. Balducci after this initial meeting with Judge 20 Q. All right. And why did you not put that statement into
21 Lackey? 21 the affidavit?
22 A. Yes, sir. 22 A. I didn't see where it was material. You had earlier where
23 Q. Okay. On May the 4th, was there a conversation between 23 the -- Mr. Balducci had approached the judge, talked to him
24 Judge Lackey and Tim Balducci? 24 about this case at some length; at the end of which, he offered
25 A. Yes, there was. 25 a position of, of counsel when the judge was ready for it. The

Exhibit B

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1 judge clearly indicated to me that he felt that was a, you 1 Q. Okay. And then, finally, on the 21st, I believe, do you
2 know, at least, at the very least, improper overture to him, if 2 remember Balducci saying this, "Frankly, Judge, I think we're
3 not rising to possibly criminal intent. Based on that, I put 3 right; and I think that the law is on our side. And I think
4 much more weight into that incident than what Mr. Balducci said 4 probably had I never approached you, we'd probably had the
5 on May 9th. 5 right result with us on this thing. My goal was simply to tell
6 Q. Okay. All right. I want to move now to May 21st. Did 6 you where -- that I had an interest in this thing and if I
7 Balducci and Lackey speak together on May 21st? 7 could help guide you to where I thought this thing legally
8 A. Yes, they did. 8 could come." You remember that statement?
9 Q. Okay. The defendants describe Judge Lackey's behavior as 9 A. Yes, sir.
10 aggressive, and they point to a particular statement Judge 10 Q. And why was that not provided in your affidavit?
11 Lackey made. He said, "I just want to hear you say it again. 11 A. Again, I go back to Judge Lackey's initial statement on
12 You and Scruggs are the only ones who know anything about 12 that May 21st conversation. He was obviously troubled. And
13 this?" Do you remember that particular statement? 13 also, I didn't give a lot of credence to -- you know,
14 A. Yes. 14 Mr. Balducci had already approached the judge again back in
15 Q. All right. They say that this omission thus conceals 15 March and subsequent contacts in early May. He told him what
16 Lackey's aggressive efforts to target Balducci. Was it your 16 he wanted. I just didn't give a lot of credibility to what was
17 opinion at that time that -- why did you leave that statement 17 said in that particular conversation.
18 out? 18 Q. And when was this affidavit signed, the initial Balducci
19 A. Again, Judge Lackey, when called on the 21st of May, he 19 wire signed?
20 started that whole conversation out by telling Mr. Balducci, 20 A. September 25th.
21 "I've never been involved in anything like this before." He 21 Q. And, so, you were aware, at that time, of events that took
22 was looking for reassurances. Judge Lackey was terribly 22 place later?
23 troubled by this whole incident. 23 A. Yes, sir.
24 He was really conflicted for two reasons: A, he knew what 24 Q. All right. The next thing the defendants point to with
25 Mr. Balducci had done was wrong; but also, Mr. Balducci was a 25 their motion is the fact that -- you remember when Judge Lackey
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1 friend of his for several years. And the judge was conflicted. 1 recused himself from the Jones v. Scruggs case?
2 He knew what he needed to do; but by the same token, he was 2 A. He sent a letter out May 21st after the phone call to
3 conflicted. He didn't want to get his friend in trouble. 3 Mr. Balducci.
4 And I think that really kind of manifested itself on May 4 Q. Did he tell you -- did you talk to him before he recused?
5 21st both with that phone call where he's clearly troubled, and 5 A. No, I did not.
6 Mr. Balducci picks up on that pretty quickly, and then later 6 Q. All right. Why did you not include in the affidavit
7 that day when he sends a recusal letter. 7 anything about the recusal?
8 Q. Okay. I want to ask you about -- I'm still on May 21st. 8 A. I didn't think it was pertinent to the case, you know, to
9 Here's another statement I want to refer you to. Do you 9 what we were looking at. Judge Lackey recused himself not
10 remember Tim Balducci saying, "I don't mean to make you 10 because what he was doing -- there was nothing criminal going
11 uncomfortable. If it's not something you feel right about, you 11 on or nothing wrong. Judge Lackey recused himself, from my
12 do what your heart tells you. I've got complete confidence 12 perspective, because he was troubled by this.
13 that it's completely fine. I would never put you -- you nor 13 Like a lot of things that people do when they're -- things
14 me -- in that position. I have complete confidence that it's 14 bother them, they want to get away from them. He made that
15 fine." Do you remember whether or not Balducci said that? 15 decision to try and, you know, remove himself from this
16 A. Yes, sir, he did. 16 problem; but he also realized after he did it that he really
17 Q. And why didn't you put that in the affidavit? 17 wasn't solving anything; and that, ultimately, this issue of
18 A. Again, I didn't give a lot of weight to it. Simply the 18 whether what Mr. Balducci did was merely improper or if there
19 fact that my impression of that conversation, Mr. Balducci was 19 was criminal intent needed to be resolved. And he was -- he
20 reacting to Judge Lackey's initial statement about him being 20 needed to be involved in that process to finding that out.
21 troubled; he'd never been involved in anything like this 21 Q. When he did recuse, did he contact you?
22 before. He was looking for some reassurance. To me, it was 22 A. When he --
23 nothing more than Mr. Balducci trying to put the judge at ease, 23 Q. After he recused?
24 trying to get him to, you know, deal with him in a position 24 A. When he sent in his subsequent letter saying he was coming
25 that he would be more comfortable in. 25 back in?

Exhibit B

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1 Q. No. I'm talking about after he recused. Did he contact 1 and Judge Lackey speak together -- speak to each other on May
2 you? 2 the 29th of last year?
3 A. The following day. 3 A. Yes, they did.
4 Q. And did you meet with him? 4 Q. All right. I want to read again the statement that the
5 A. Yes, I did. 5 defendants allege was made and ask if you remember this
6 Q. And what did you tell him to do? 6 statement. They're saying that Balducci says this to Judge
7 A. I discussed with him, basically, what the options were, 7 Lackey, "I damn sure didn't want you to do anything to
8 you know. He told me -- he didn't really give me any concrete 8 jeopardize my relationship with you. I didn't want to do
9 explanations, from what I recall, as to why he did it. I could 9 anything in the world to do that relationship any harm. I want
10 tell, again, this whole situation troubled him greatly. We 10 to make sure you and I are okay and that it would break my
11 discussed possible options. He told me that, you know, the 11 heart if I thought I put you in a bad position. When you
12 door for him getting back in was not necessarily closed. 12 called the other night, I could tell that you were troubled by
13 I don't remember specifically what he hadn't done to 13 it." Do you remember that statement being made?
14 finalize it. I think it may have been notify the Supreme 14 A. Yes, I do.
15 Court, but I'm not sure. But anyway, he indicated to me that 15 Q. Why didn't you include that?
16 the door was not shut on him getting back into the case. We 16 A. Again, May 29th is shortly after the judge had recused
17 talked about it; and when I left him that day, he had not made 17 himself. Mr. Balducci knew he had recused himself. It is
18 a decision one way or the other what he was going to do, other 18 clear to me, my impression, Mr. Balducci was concerned about
19 than he was just going to think about it. 19 his actions; and he was trying to do anything he could or say
20 Q. Were you demanding that he get back into the case? 20 anything he could to the judge to try and remedy what he
21 A. No. No. 21 thought was a misstep on his part.
22 Q. All right. The next thing to which the defendants refer 22 Q. All right. Again, the defendants refer to Balducci
23 is that your affidavit failed to disclose that Judge Lackey 23 saying, with reference to the decision they were wanting Judge
24 repeatedly contacted Balducci from May until September. As I 24 Lackey to make, "If that's how you see it after you've taken a
25 said, they're describing Judge Lackey's behavior as aggressive. 25 look at it, if you see it that way, that would be terrific."
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1 Do you know how many times during the summer of 2007 -- do you 1 Do you remember that statement being made?
2 know how many times Judge Lackey contacted Tim Balducci? 2 A. Yes, I do.
3 A. I believe there was two or three contacts in June. I 3 Q. And why did you not put that in the affidavit?
4 don't believe there was any contact in July that I'm aware of. 4 A. Same reason. Again, it's right after the recusal. It's
5 And I think there was two more contacts in August. 5 right after the phone call on May 21 where Balducci
6 Q. All right. During the summer of 2007, how many FBI agents 6 acknowledges he can tell the judge is troubled. I think
7 were working on this case with you? 7 Balducci is trying to placate the judge as much as possible,
8 A. Just myself. 8 trying to keep from a bad situation being worse.
9 Q. All right. Where were you during July? 9 Q. Okay. Just three more statements I've got with respect to
10 A. I was gone for three out of the four weeks out of the 10 the September the 25th affidavit. The defendants refer to a
11 state. 11 September the 18th conversation between Judge Lackey and
12 Q. Okay. Were you working on any other cases besides this 12 Balducci. And they point out that Judge Lackey told Balducci
13 case during this time period? 13 that he -- quote, he wanted to -- quote, "help me get over a
14 A. During the summer, yes, sir. I had several other cases, 14 little hump I've got." This is when he's discussing payment.
15 to include cattle gate (phonetic). 15 A. Uh-huh (yes).
16 Q. You were working on the case involving Mississippi Beef? 16 Q. Do you remember that phrase, Judge Lackey using that
17 A. Yes, sir. 17 phrase?
18 Q. How often would you meet or speak with Judge Lackey that 18 A. I do.
19 summer? 19 Q. And why did you not put that phrase in the affidavit?
20 A. It was pretty infrequently. I believe I probably came 20 A. Because there were earlier conversation on September 18th
21 down -- if I was up here working on another case, I would come 21 where Judge Lackey had talked about the Scruggs matter, and
22 down through Calhoun City and see him just to check on him. 22 that he wanted to help him; and basically asked him, said, "If
23 Again, he was real troubled by this; and a lot of times, I just 23 I'm willing to help them, would they help us?" And
24 came by to see how he's doing, see how he's holding up. 24 Mr. Balducci's response was, "No question." And continued on
25 Q. Okay. I want to take you now to May 29th. Did Balducci 25 trying to figure out, you know, how he could do it.

Exhibit B

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DAILY COPY DIRECT - DELANEY 125 DAILY COPY CROSS - DELANEY 127
1 I put much more weight into those comments, that 1 October 16th.
2 conversation, than I did, you know, over the hump. 2 MR. KEKER: Excuse me, Mr. Sanders. Your Honor,
3 Subsequently, I believe, also later in that conversation, that 3 could I suggest that maybe if I could examine on this
4 comment that the judge made about getting over a hump was in 4 affidavit -- and we have this affidavit -- kind of put it to
5 response to a question from Mr. Balducci about how badly he 5 bed in one place before we move on? I'm afraid they're all
6 needs the help or when he needs the help. 6 going to get mushed up.
7 Q. So when Judge Lackey asked him to "help get me over a 7 THE COURT: That may be preferable.
8 little hump," you're saying that Balducci had already agreed to 8 MR. KEKER: And I'll stop at --
9 pay the bribe by the time he said that? 9 THE COURT: All right.
10 A. Yes, that's my recollection. 10 CROSS-EXAMINATION
11 Q. All right. On the 21st, Judge Lackey is speaking with 11 BY MR. KEKER:
12 Balducci again and he says, "I could delay my misery; I think I 12 Q. Good afternoon, Agent Delaney.
13 can get them to put it off." Do you remember whether Judge 13 A. Good afternoon.
14 Lackey said that to Tim? 14 Q. Agent Delaney, you've said you're the case agent on this
15 A. Yes, he did. 15 case?
16 Q. And why did you not put that phrase in the affidavit? 16 A. Yes, sir.
17 A. Much the same reason. Earlier in the conversation, they 17 Q. And when were you assigned to it?
18 had discussed the arrangement, the judge helping them out, 18 A. I'm sorry?
19 signing the order, sending it to arbitration in exchange for -- 19 Q. When were you assigned to the case?
20 what they agreed on that day was $40,000. They went so far as 20 A. Early April, I believe. Early, mid-April.
21 trying to figure out how the arrangements could be made, 21 Q. And you said one of the first things you did is interview
22 whether it was in cash, how quickly he needed it. To me, they 22 Judge Lackey?
23 had already agreed to the deal. That line did not carry as 23 A. Yes, sir.
24 much weight as the earlier conversations as to the incident. 24 Q. Do you remember when that interview was?
25 Q. All right. Okay. And then, finally, on September the 25 A. I believe it was around April 24th.
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DAILY COPY DIRECT - DELANEY 126 DAILY COPY CROSS - DELANEY 128
1 24th, do you remember Judge Lackey speaking to Tim Balducci and 1 Q. Did Judge Lackey tell you then that he had waited two
2 saying, "Can I commit to my folks that are pressuring me 2 weeks before reporting his conversation with Mr. Balducci?
3 something by the weekend?" Do you remember that phrase? 3 A. No, sir. He didn't give me a frame as to when he had
4 A. I do. 4 reported it. He just said he reported it to the U.S.
5 Q. And why was that not included in the affidavit? 5 Attorney's Office.
6 A. Same reason. Again, that was later in the conversation; 6 Q. Why did you put it in your declaration, that we're
7 and actually, that comment from the judge was in response to a 7 referring to now as Exhibit 9 -- why did you put in your
8 question from Mr. Balducci and, again, I think asking how soon 8 declaration that it was at the conclusion of the meeting, then?
9 he needed the money. Again, they had already agreed to what 9 A. That was my understanding talking to the U.S. Attorney's
10 the deal was going to be. 10 Office and talking to the judge, that it was shortly after
11 In this particular instance on September 24th, if I recall 11 Mr. Balducci came down and met with him.
12 correctly, the judge was returning a call to Mr. Balducci. 12 Q. Okay. So did Judge Lackey give you the impression --
13 Mr. Balducci immediately, in the conversation, was trying to 13 leave you to understand that at the conclusion of the meeting
14 set up an arrangement with the judge. He said, "I can come 14 he went to the U.S. Attorney and said, "There's a problem
15 down tomorrow. I can come down the next day." And the judge 15 here"?
16 is trying to set it up for later in the week. And, so, to me, 16 A. We didn't get into the time frame as to how quickly he
17 that was nothing more than the judge just trying to set 17 went and saw the U.S. Attorney's Office. He just indicated to
18 parameters when this deal could take place. The deal had 18 me that that's what he had done.
19 already been agreed to on a couple of different occasions. 19 Q. Did you later learn that it was a two-week interval?
20 Q. So it was your impression who was putting pressure on 20 A. Yes, sir.
21 whom? 21 Q. Did you ask him about it?
22 A. In that particular phone call, it sounded like 22 A. He explained it to me.
23 Mr. Balducci was much more eager to get the deal done sooner 23 Q. What did he explain? Tell us about that.
24 than the judge. 24 A. As what happened in that interim?
25 Q. All right. I now want to ask you about the affidavit from 25 Q. Yeah.

Exhibit B

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DAILY COPY CROSS - DELANEY 129 DAILY COPY CROSS - DELANEY 131
1 A. He had talked to several different people after 1 A. Basically to make it -- to find out if that in fact had
2 Mr. Balducci's visit. Again, he was troubled. He didn't know 2 happened, whether it was just an improper overture by
3 what to do. He talked to several different people soliciting 3 Mr. Balducci or was it more.
4 different people's advice. Ultimately, he decided the best 4 Q. When did you set up recording equipment in Judge Lackey's
5 course of action was to contact the U.S. Attorney's Office. 5 office? And by you, I mean the Government.
6 Q. Did he tell you who he talked to? 6 A. The first time we tried to made a recorded conversation
7 A. He did. I don't know any of the individuals personally, 7 was May 3rd.
8 so I can't recall their names. 8 Q. When did you set up the recording equipment?
9 Q. Did he tell you that during this two-week period he was 9 A. I'm not sure when -- what you mean by set up. I gave him
10 sort of trying to figure out whether or not anything improper 10 a telephone recorder on May 3rd.
11 had happened? 11 Q. Was there a call with Mr. Balducci on May 3rd?
12 A. He just told me that he was discussing it with other 12 A. Yes, there was.
13 people and trying figure out what the best course of action 13 Q. And was that call recorded?
14 was. 14 A. It was -- the only thing that was successfully recorded
15 Q. Did he tell you that he had a real question about whether 15 was the preamble.
16 or not anything improper had happened? 16 Q. And what was the preamble?
17 A. No. He made it clear to me that he certainly believed 17 A. Just basically the judge identifying who he was, who he
18 something improper had happened. It was just a question of 18 was calling, the time, the date, the numbers he was calling
19 whether something criminal had happened. 19 from and calling to, from what I recall.
20 Q. What did he tell you about this of counsel position? 20 Q. And, so, he talks into this recording machine; and we've
21 A. He told me that he believed -- he took it, when 21 been told that there's no recording of this.
22 Mr. Balducci came down and talked about the civil case that he 22 A. That's correct.
23 was hearing -- that when Mr. Balducci, at the end of 23 Q. You're telling me there was a recording, but it
24 conversation, offered him the position of, of counsel to him 24 malfunctioned some point?
25 Mr. Balducci was trying to say that if, you know, you help us 25 A. The only thing that was captured on tape was preamble.
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1 out on this case; when you're ready, I'll have a position in my 1 The actual content of the conversation between Judge Lackey and
2 law firm for you. 2 Balducci was not captured.
3 Q. And that's the way Judge Lackey presented it, offer of 3 Q. Who had control over that recording device on May 3rd to
4 quid pro quo? 4 determine whether or not a call would be recorded or not?
5 A. Yes, sir. 5 A. I gave the recording -- actually, Judge Lackey used his
6 Q. So he had no question in his mind that he had been bribed? 6 own recording device on that instance.
7 A. No, sir. There was no -- see, there was no question that 7 Q. Oh, so you didn't give --
8 he had been bribed. That was the whole crux of this thing. He 8 A. I gave him one; he elected to use his own in that
9 knew something improper had happened, but he didn't know for 9 particular incident.
10 sure if something illegal had happened. 10 Q. And he didn't record the call on May 3rd?
11 Q. So Judge Lackey didn't know whether or not someone had 11 A. It was not successfully recorded, no.
12 offered to bribe him? 12 Q. Did he report to you about that?
13 A. Say that again, sir. 13 A. Yes. I was in the office with him.
14 Q. Judge Lackey, after this first meeting with Mr. Balducci, 14 Q. During the call?
15 spent two weeks trying to figure out what to do about it? 15 A. Yes, sir.
16 A. Uh-huh (yes). 16 THE COURT: Mr. Keker, the area of inquiry that has
17 Q. And he didn't know, during that two-week period, that he 17 been established for this testimony is to examine what you have
18 had been bribed? 18 alleged were misleading or false statements that were not put
19 A. He didn't know whether, you know, what had happened with 19 in the affidavit. Please stick to that area.
20 Mr. Balducci rose to the level of a criminal action, no. That 20 MR. KEKER: And forgive me if I got afield.
21 was the whole point of contacting the U.S. Attorney's Office 21 BY MR. KEKER:
22 and bringing our office in to determine if that in fact had 22 Q. As I understand your testimony, every one of the omissions
23 happened or would happen. 23 that we have alluded to was done on purpose; you did it
24 Q. So what you did is set up recording equipment in his 24 intentionally?
25 office to get to the bottom of it? 25 A. I won't say it was done intentionally. I weighed what

Exhibit B

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1 information I had in front of me, and I tried to make the best 1 Q. Let me jump ahead, then, to May 9. We're still trying to
2 decision I could based on what I believe was probable cause 2 determine -- you and Judge Lackey are trying to determine if
3 that Mr. Balducci was using his phone to conduct a criminal 3 Mr. Balducci is a criminal. You left out that there was no
4 conspiracy. 4 discussion of -- you didn't say anything, but there's no
5 Q. And to the extent that the information before you didn't 5 discussion of money, no discussion of the of counsel position
6 fit into what you thought established probable cause, you chose 6 in that call, right?
7 to leave it out? 7 A. Not that I recall. Well, I take that back. I believe
8 A. No. 8 Mr. Balducci spoke about some of the people he did bring in --
9 Q. Well, I think you said something about, you just didn't 9 had brought in recently as of counsel; and I'm not sure if he
10 see much credibility with what he said; and therefore, you left 10 specifically said, "Judge, again, we'd like to have you of
11 it out. Another time you said, you didn't think it carried 11 counsel"; but that was the -- my interpretation of the intent
12 much weight; and you left it out. All the exculpatory material 12 of that, of that whole litany, was to say that we've got room
13 you left out? 13 for you; we'd like to have you in there.
14 A. I explained myself why I left it out. There was 14 Q. And at the end of the conversation, he says -- Judge
15 obviously, in my view, reasons why Mr. Balducci said those 15 Lackey said, "It looks like they deserve to have the case go to
16 things. 16 arbitration," or words to that effect; and you left that out
17 Q. Okay. Then let's go through some of them. May 4th, the 17 deliberately, right?
18 first call that's recorded, you left out deliberately that he 18 A. I don't think he said that, sir. I think what he said,
19 referred to this order that he'd sent down as "just some 19 "Looks like they agreed to it." But again, as I said earlier,
20 thoughts, ideas, suggestions, I thought I'd put it on paper, 20 before Judge Lackey had said that, he had told Mr. Balducci
21 see if His Honor might be interested in it"? 21 that he thought the case was going to the Supreme Court. He
22 A. Uh-huh (yes). 22 was reacting in that particular statement, which you reference
23 Q. And you left that out because you didn't think it 23 in your motion, he was reacting -- the judge was reacting to a
24 supported probable cause? 24 question that Mr. Balducci posed to him. He answered it. He
25 A. Again, earlier in the day, he had sent a fax to the judge, 25 didn't answer it completely. He just said, "Yeah, sort of
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1 unsolicited, with an order with a signature line on it. I give 1 looks like what they agreed to." But he didn't say, "I agree
2 more weight to that action than what Mr. Balducci said. To me, 2 with it; that's how I'm going to act," or any other.
3 it was clear that -- to me what Mr. Balducci wanted was the 3 Q. Agent Delaney, you are an FBI agent; and in substance,
4 judge to sign and enter that order rather than just trying to 4 you're being paid to look at the world through dirty windows;
5 give him some thoughts and ideas about the case. 5 isn't that true?
6 Q. There wasn't any mention in that phone conversation about 6 A. I'm not sure what you mean by dirty windows.
7 an of counsel position, was there? 7 Q. Well, you cast a suspicious eye on human transactions to
8 A. No, sir, there wasn't. 8 see if there's anything illegal about it, right?
9 Q. And what you said in your affidavit was that there had 9 A. If allegations are brought to me, my job is to try to
10 been mention of an of counsel position in the May 3rd 10 figure out whether they're true or not.
11 unrecorded call? 11 Q. Did you understand that the job of the judge -- remember
12 A. Correct. 12 the judicial branch -- in evaluating the affidavit from a law
13 Q. And in your affidavit, you quoted what was said in the May 13 enforcement officer is to try to look at it fair and square and
14 3rd call. And would you agree that your affidavit gives the 14 call the chips -- look at it fair and square, look at all the
15 impression there was a recording with that May 3rd call? 15 information and make a decision?
16 A. That was taken from a statement provided to me by the 16 A. Yes, sir.
17 judge. The judge wrote out a statement after the May 3rd 17 Q. And did you understand that you were filtering out
18 recording. 18 exculpatory information so the judge wouldn't have that to look
19 Q. Okay. And you were quoting from his statement? 19 at?
20 A. Yes, sir. 20 A. Again, I put down in that affidavit what I thought was the
21 Q. Okay. And you didn't consider it misleading that you were 21 best probable cause regarding Mr. Balducci's use of his
22 quoting and implying that it was recorded? 22 cellular telephone in a criminal case.
23 A. I don't think it says in the affidavit that it is from a 23 Q. Did you tell the judge that as of May 9 they -- the
24 recording. It's quoted from a -- it's quoted from Judge 24 judge -- Balducci had talked to Judge Lackey, and Judge Lackey
25 Lackey's statement that he gave to me. 25 says, "It looks like that's what they agreed to"? There was no

Exhibit B

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1 discussion about doing anything further with respect to 1 And, you know, I don't want to -- you know, we don't need to
2 anything. Did you tell the judge that it was over on May 9th? 2 talk about this anymore; and I apologize." It never went that
3 A. No, I did not put that in my affidavit, if that's what 3 far.
4 you're asking me. 4 Q. But he said, "You do what you feel comfortable with. I
5 Q. And then on May 21, Judge Lackey started calling 5 don't mean to make you uncomfortable. If it's something that
6 Mr. Balducci again, right? 6 you feel right about, you do what your heart tells you."
7 A. He called him, yes, sir. 7 What's the difference, Agent Delaney?
8 Q. Did you tell him to call him? 8 A. The difference is he's telling him what to do; he's not
9 A. I was not present for that call. 9 stopping -- you know, he's not saying, What happened in the
10 Q. Did you tell him to call? 10 past was wrong. He's not trying to stop what is happening then
11 A. (No response.) 11 or what may happen in the future.
12 Q. Or suggest? 12 Q. You didn't put in the affidavit what he said on May 21st,
13 A. I'm sure we discussed having him call, yes. 13 and this is all right before Judge Lackey gets out of the case
14 Q. And did he call him once -- he called him twice; and 14 because he's being earwigged by the other side. Balducci says,
15 finally, he got him the third time. And Mr. Balducci assured 15 "Frankly, I think we're right; and I think the law's on our
16 Judge Lackey that nobody other than Balducci and Scruggs knew 16 side. And I think probably had I never approached you, we'd
17 the arrangements suggested by Balducci. 17 have probably had the right result for us on this thing. My
18 You put that in; but then you omitted that it was Judge 18 goal is simply to tell you where I had an interest in this
19 Lackey that was bringing that up; that Balducci said a number 19 thing and help guide you to where I thought this thing legally
20 of times he didn't want the judge to do anything improper; that 20 could come." You left that out, too?
21 Balducci said to Judge Lackey, "You do what you feel 21 A. Yes, sir.
22 comfortable with, and I don't mean to make you uncomfortable, 22 Q. And then you omitted, he recused himself that same night
23 if it's not something you feel right about. You do what your 23 or day?
24 heart tells you. I've got complete confidence that this is 24 A. Yes, sir.
25 completely fine. I would never put you or me in that position. 25 Q. And you left that out of the affidavit?
- -
1 I have complete confidence that it's fine." You left that out 1 A. Yes, I did.
2 of your affidavit, right? 2 Q. But you also left out of the affidavit -- who called whom
3 A. Yes, sir. 3 the next day? You got together with him the next day?
4 Q. And you did it on purpose? 4 A. Yes, I did.
5 A. No, I did not do it on purpose. I did it, again, 5 Q. And you told him to get back in there?
6 reflecting over the content of the call and the fact that the 6 A. No, sir, I didn't.
7 judge calls up, he's troubled. Mr. Balducci picks up that he's 7 Q. Why did you get together with him the next day?
8 troubled. I believe the judge starts out the conversation 8 A. I believe he called me to tell me that he'd made that
9 with, "I've never been involved in anything like this before. 9 phone call to Mr. Balducci and that he was recusing himself.
10 I'm looking for reassurance." My impression, that's what 10 Q. Well, he filed a form on the 21st, right?
11 Mr. Balducci was doing; he was reacting to that comment of the 11 A. I'm sorry?
12 judge and trying to reassure the judge. 12 Q. He filed a form recusing himself, a formal recusal?
13 Q. You said earlier he was trying to put the judge at ease? 13 A. My understanding is he faxed the letter on the 21st.
14 A. Yes, sir. 14 Q. And he called you and told you about it?
15 Q. And you didn't put that in your affidavit so that the 15 A. On the 22nd.
16 judge evaluating probable cause would know that? 16 Q. And you talked him into getting back in the case?
17 A. No, I didn't. 17 A. No, I did not. He made that decision on his own.
18 Q. Why didn't you do that? 18 Q. Did you and Judge Lackey talk about the fact that up to
19 A. Why didn't I put that the judge was not at ease? 19 now, at least, you as a professional agent and he as a judge,
20 Q. Why didn't you put that Balducci's making all these 20 nothing criminal had happened; there's no case?
21 professions of innocence, trying to put the judge at ease and 21 A. No. We -- in that particular instance, from what I
22 make everything go away, basically? 22 recall, we discussed his recusal, his possibility of getting
23 A. But he never did say, Look -- he said -- he was trying to 23 back in. We talked about the different options. And again,
24 put the judge at ease; but he never said, "Look, Judge, you 24 from what I recall, at the end of meeting with him, he had not
25 misunderstood me. I didn't mean to influence you in this way. 25 made up his mind what he was going to do. He said he would

Exhibit B

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1 think about it. 1 Q. And then there's nothing in the affidavit about -- well,
2 Q. So when did you learn that he was going to get back in the 2 did you ask Judge Lackey when you got back in August to start
3 case? 3 making calls to Balducci?
4 A. Less than a week later, I believe. 4 A. I mean, I -- no. Did I continually direct him to make
5 Q. Okay. And the first thing you did when you learned he was 5 calls? No. It was understood from the beginning that if
6 going to get back in the case, you came up and wired up this 6 Mr. Balducci contacted him, he was, you know, to try and record
7 judge in circuit court; and you sent him up to New Albany to 7 the conversation or, if not, call him back and record the
8 have lunch with Tim Balducci, right? 8 conversation. I wasn't directing him when to make the calls or
9 A. No, that was not the next thing. 9 anything like that. That was pretty much up to Judge Lackey.
10 THE COURT: Counselor, now -- 10 Q. And did you know that he tried to contact Mr. Balducci on
11 MR. KEKER: I'm sorry, Your Honor. 11 August 3rd, but Mr. Balducci didn't call him back?
12 THE COURT: Stick with what we've talked about. 12 A. Yes, sir.
13 BY MR. KEKER: 13 Q. And did you put that in the affidavit?
14 Q. Did you say anything in the affidavit about the fact that 14 A. No. I believe actually what happened is he called and he
15 you wired him up and sent him to New Albany to have lunch with 15 wasn't there, and he didn't leave a message for him to call
16 Tim Balducci? 16 back.
17 A. No, I did not. 17 Q. And Mr. Balducci didn't call him back?
18 Q. And did you say anything in the affidavit about the fact 18 A. No, he didn't; but he didn't ask him to call him back
19 that at that lunch nothing -- Balducci, despite being alone in 19 either.
20 the car with Judge Lackey not once but twice, said nothing 20 Q. And did you put in the affidavit that he called him, Judge
21 about the Jones case or about of counsel or any of this? 21 Lackey called Balducci on August 9?
22 A. No, I didn't. 22 A. That's not in the affidavit, no.
23 Q. And did you say anything in the affidavit about the fact 23 Q. And did you say that Judge Lackey was trying to implicate
24 that you wired him up again on June 28 and directed him to go 24 Dick Scruggs in that conversation by asking, "You think Dickie
25 to the Balducci office? 25 wants this thing to go to mediation and arbitration"? He
- -
1 A. No, I did not. 1 brings up Scruggs's name just gratuitously?
2 Q. But you did do that; you did wire him up and send him to 2 A. No, it's not in the affidavit.
3 the Balducci office? 3 Q. And did you put in the affidavit that on August 9 Balducci
4 A. I gave him a body recorder; and, yes, he did. 4 told Lackey -- Judge Lackey's just had a hearing -- to decide
5 Q. And again, nothing happened; you didn't say anything about 5 the motion how he sees it? "If that's how you see it after
6 that in the affidavit? 6 you've taken a look at it, if you see it that way, that'd be
7 A. No, I did not. 7 terrific."
8 Q. At any point, did Judge Lackey say to you, you know, "I'm 8 A. That's not in the affidavit.
9 getting nervous about this motion that's been pending since 9 Q. But it happened, didn't it?
10 March 19th"? 10 A. Yes, it did.
11 A. No. We discussed that. Actually, I brought it up more 11 Q. And then on August 27, Judge Lackey called Mr. Balducci
12 than he did; and he assured me it was fine; he'd be able to 12 twice; and Balducci didn't call him back. And you didn't
13 take care of it. 13 mention that in the affidavit, did you?
14 Q. Did you put into your affidavit that during your -- I 14 A. No, sir.
15 guess you were on some kind of military leave during -- 15 Q. And on September 11th, Judge Lackey same thing, called him
16 A. No, sir, I was not on military. 16 twice, leaving messages; and Balducci didn't call him back.
17 Q. But you were out of state in July? 17 A. I believe Mr. Balducci may have been out of town on that
18 A. Yes. 18 particular instance.
19 Q. And Judge Lackey held a hearing in the Jones case to 19 Q. But you didn't say in your affidavit --
20 decide the motion to arbitrate? Did you know that? 20 A. No, it's not in the affidavit.
21 A. I believe I learned of that later. 21 Q. Then you said you were stopping by to see Judge Lackey.
22 Q. And there's nothing in the affidavit about that or about 22 How many times do you think you stopped down at Calhoun City to
23 the fact that he still wouldn't issue an order one way or the 23 see Judge Lackey?
24 other? 24 A. I couldn't give you an accurate number, sir.
25 A. No, sir. 25 Q. On September 18 -- you talked about September 18, said

Exhibit B

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1 something about they mentioned a hump and all that business. 1 needed to get this thing resolved; we needed to get this thing
2 That wasn't September 18. That was September 21st, wasn't it? 2 resolved. And the only way to get it resolved was for him to
3 I don't want to confuse you. 3 broach that question to Mr. Balducci in sort of the form that
4 A. Without looking at the transcript -- I think it was 4 he did.
5 September 18; but without looking at the transcript, I don't 5 Q. Did you say in the affidavit that you filed in September
6 know for sure. 6 that for six months of calling and visiting and transcribed
7 Q. On September 18, Mr. -- Judge Lackey said to 7 calls Balducci had not even given a glimmer that he was talking
8 Mr. Balducci -- first of all, who called whom on September 18? 8 about a bribe?
9 It was Judge Lackey calling Balducci, correct? 9 A. Again, the judge -- early on in that first meeting, back
10 A. I believe that's correct. 10 in March, the judge believed that that overture where he talked
11 Q. And let me give you the transcript if you want to use it 11 about the case and then later of counsel was a possibility that
12 to refresh your recollection. 12 a bribe did exist.
13 A. Thank you. 13 Q. Did you say in the affidavit that from March to
14 MR. KEKER: Would you like a copy, Your Honor? 14 September 17 there had never been a hint from Mr. Balducci or
15 THE COURT: No. 15 anybody else that they were talking about money bribe to
16 MR. KEKER: This is Exhibit 12 to the Dooley 16 Judge --
17 declaration. 17 A. No, that did not come up. That does not eliminate the
18 BY MR. KEKER: 18 fact of what happened on March 28.
19 Q. September 18 is not the call where he says he's got to get 19 Q. So was it -- whose idea was it to raise the issue of a
20 over the hump, is it? 20 money bribe in September after this six months of silence?
21 A. Okay. Are you asking me? 21 A. Again, it was not the issue of -- the idea of whether it
22 Q. Yeah. I just want you -- 22 was a money bribe was not the initial thing. It was framing
23 THE COURT: What are you asking him to look at? 23 the question in such a way, without putting any kind of
24 MR. KEKER: I'm asking him to look at the transcript 24 tangible value on it, to see what Mr. Balducci's reaction would
25 we've been provided. 25 be; and that's what he did.
- -
1 THE COURT: I know that, but what part. 1 The judge told me in early September, he said, "Look, we
2 MR. KEKER: On September 18, to see if his testimony 2 need to find out one once and for all what is going on here";
3 on direct was mistaken, that this is not the call where he 3 and that's what we decided to do, to have him ask Mr. Balducci
4 talks about "I've got to get over a hump." That happened three 4 in the manner that's recorded in this conversation on the 18th
5 days later, and I think Agent Delaney -- 5 of September.
6 THE WITNESS: I don't see it in here. 6 Q. The 18th -- and he asked him -- and Balducci's reaction
7 BY MR. KEKER: 7 was --
8 Q. So -- but that is the conversation where Judge Lackey says 8 MR. SANDERS: Your Honor, we're now getting into -- I
9 Grady -- meaning Grady Tollison, the opponent in the Jones v. 9 think the affidavit was September 25th. I thought we were
10 Scruggs case -- is putting some pressure on him? 10 getting into what took place after the 25th.
11 A. September 18. 11 MR. KEKER: No. No, still September 18th
12 Q. Did you talk to Judge Lackey to get an understanding what 12 conversation. I want to make sure this part is clear. On
13 that pressure was? 13 September 18 --
14 A. I don't recall talking to Judge Lackey about that, no. 14 THE COURT: Limit it to what you've alleged was
15 Q. Where did the idea on September 18 to ask Balducci what 15 omitted from the affidavit or what you allege was in the
16 could be done -- what can you do for me or what can they do for 16 affidavit that was materially misleading and why he did that.
17 me, where did that idea come from? 17 That's what this examination is about.
18 A. That idea came from -- that was sort of the idea from the 18 BY MR. KEKER:
19 very beginning, again, to find out which way this thing was 19 Q. Did you put in the affidavit that in response to a
20 going to go. Is it just an improper overture or something 20 suggestion by the judge that they do something for him? Did
21 criminal in nature that occurred? Again, I go back to the 21 you put in the affidavit that Mr. Balducci did not offer to do
22 judge was very, very troubled over this. He didn't want to get 22 anything for him, did not come back with any concrete proposal?
23 his friend in trouble. Let me finish, please. 23 A. I put in the affidavit the contents of that conversation
24 It took Judge Lackey virtually the entire summer -- from 24 from September 18.
25 my perspective, it took him the entire summer to realize he 25 Q. Well, you didn't put in all the contents, did you?

Exhibit B

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DAILY COPY CROSS - DELANEY 149 DAILY COPY REDIRECT - DELANEY 151
1 A. No, I didn't. 1 your recollection?
2 Q. And you didn't put in the fact that he did not come back 2 MR. KEKER: Your Honor, I'm embarrassed to say what I
3 and say, yeah, we will do X, Y, Z. 3 handed him were excerpts and not the full transcript. I'm not
4 A. There was nothing definitive decided on October -- I'm 4 sure if --
5 sorry -- September 18th, other than the fact that the judge 5 THE WITNESS: There is no page 8.
6 asked, "If I help them out, will they help me out" and 6 MR. SANDERS: May I approach, Your Honor?
7 Mr. Balducci -- I believe his response was, "No question, I 7 THE COURT: All right. You may hand him the
8 think they will." 8 transcript.
9 Q. But he also said, "You go think on it, Balducci, and come 9 MR. SANDERS: Okay.
10 back and tell me what you've got to offer," words to that 10 THE COURT: Give Mr. Keker back his excerpts.
11 effect? 11 THE WITNESS: Yes, he does. He does say that it's my
12 A. I don't know what the exact words are. Can I look at the 12 make and my hump, can't blame anybody else.
13 transcript? 13 BY MR. SANDERS:
14 Q. Sure. But you know -- he did not -- he tried to leave it 14 Q. Okay. I just wanted to clear that up. He asked you about
15 with Balducci, and Balducci didn't respond with any kind of 15 May the 4th. Again, he asked you about the thoughts, ideas
16 specific quid pro quo. 16 that Balducci was referring to?
17 A. No. There was no specific deal done on September 18th. 17 A. Yes, sir.
18 It was strictly, as I said, he asked if I would help them, 18 Q. What specific document was Balducci referring to when he
19 would they help me; and he was told he thought he would. 19 talked about the thoughts, ideas on paper?
20 Q. Did you point out in the affidavit, to the magistrate 20 A. He was referring to that May 4th order that he'd faxed
21 deciding whether or not to issue the wiretap, that after three 21 down to Judge Lackey earlier in the morning.
22 days Judge Lackey was the one who had to come up with a 22 Q. All right. And now he asked you, too, on May 4th whether
23 specific quid pro quo, namely $40,000? 23 or not Balducci refers to of counsel. Did he on May 4th?
24 A. I believe on the 21st Mr. Balducci asked him what he was 24 A. No, not that I recall.
25 referring to. 25 Q. Did he on May 3rd?
- -
DAILY COPY REDIRECT - DELANEY 150 DAILY COPY REDIRECT - DELANEY 152
1 Q. And that's when the judge raises the issue of money? 1 A. Yes, he did.
2 A. Yes. 2 Q. And did he on May 9th?
3 Q. And talks about the hump he has to get over and the 3 A. I believe he did.
4 problems in his private life? 4 Q. All right. And again, the statements Balducci is making,
5 A. He talks about the hump he has to get over after 5 that I think everything is fine, this order is fine, I think
6 Mr. Balducci agrees to the 40 in discussing how they're going 6 this is probably right, those statements he made, what was your
7 to do it and saying he's the one to do it. 7 impression of those statements; and why did you not put those
8 Q. The transcript will speak for itself. 8 statements in the affidavit?
9 MR. KEKER: That's all I have on this, Your Honor. 9 A. Again, to me -- which date are we talking about, May --
10 THE COURT: All right. Any redirect? 10 Q. The 21st of May.
11 MR. SANDERS: Yes, Your Honor. 11 A. Oh, the 21st. Again, those statements, to me, were
12 REDIRECT EXAMINATION 12 clearly made in response to the judge's first comment during
13 BY MR. SANDERS: 13 the conversation that, "Look, I've never been involved in
14 Q. There was some conversation about the September 18th and 14 something like this." He's clearly troubled. Mr. Balducci
15 the September 21st when Judge Lackey said "to get him over a 15 picks up on the judge is clearly troubled. And Mr. Balducci
16 hump." Did Judge Lackey discuss getting over a hump both 16 clearly is trying to put the judge at ease and trying to assure
17 times? Do you recall? 17 him that everything will be okay.
18 A. I think on the 18th. I'm not sure if he used the exact 18 Q. Everything will be okay meaning what?
19 term getting over a hump, but I think he'd indicated he'd had 19 A. That nobody else is going to find out, that they'll be
20 some problems. 20 able to do -- you know, if the judge does what they're asking
21 Q. All right. If I hand you the transcript from 21 him to do, that there won't be any problems as a result of it.
22 September 18th, would it refresh your recollection? You may 22 Q. Okay. Also, you said that Tim never said anything like,
23 still have it. 23 "No, you misunderstood this, Judge" something to that effect.
24 A. I have it. 24 What would you have done if he'd said something like that?
25 Q. If you look at page 8, do you think that would refresh 25 A. If Mr. Balducci had made it clear that the judge was

Exhibit B

- 155
DAILY COPY REDIRECT - DELANEY 153 1 THE COURT: Now, there's a question we haven't taken
1 mistaken in his overtures in March or early May and relay that 2 up yet. There hasn't been any question raised about standing
2 to me, if it was on tape, then I probably would have approached 3 for the defendants in this case to complain about a wiretap on
3 Mr. Balducci, interviewed him, tried to find out exactly what 4 somebody else's phone. Of course, there was no wiretap ever on
4 his intentions were. Based on that, I may have gone and 5 Mr. Scruggs elder, Mr. Zach Scruggs, or Mr. Backstrom's phone.
5 interviewed Mr. Scruggs; but certainly, I would have talked to 6 So their phones were never tapped.
6 Mr. Balducci. 7 So I understand there's no law that's clear that an
7 Q. And finally, you mentioned once -- you said that Judge 8 aggrieved party can complain about if evidence on a wiretap of
8 Lackey had -- Mr. Keker did -- he said that Judge Lackey 9 somebody else's phone is used against a third person -- or a
9 recused because he was being earwigged by the other side. You
10 second person from the phone, owner of the phone, then that
10 said you met with Judge Lackey after he recused. Was that why?
11 aggrieved person has a standing to complain about it. But the
11 A. No. He recused himself because he was terribly troubled
12 question that I'd like to hear from counsel on is if there was
12 by this.
13 no information gained from the wiretap on Mr. Balducci's phone
13 MR. SANDERS: Your Honor, I don't have any more
14 from September 25th, I believe is when it was issued, until the
14 questions for this agent on the September 25th wiretap.
15 renewal of that wiretap -- which was, what, 30 days later?
15 THE COURT: All right. You may step down.
16 MR. KEKER: Your Honor, may I ask him one question
17 about the September 25? 17 THE COURT: Thirty days later. Was there any
18 THE COURT: Was it anything that came out on cross? 18 information during that thirty-day period that any of these
19 MR. KEKER: Well, it's the date. 19 three defendants can claim they are aggrieved by, Mr. Keker?
20 THE COURT: You may ask him about any question that 20 MR. KEKER: I believe so, Your Honor. October 18,
21 came out on cross-examination. 21 Mr. Backstrom is on one of the calls. And it's also our
22 MR. KEKER: This is something that -- I wouldn't say 22 position that calls on a wiretap into a premises, owners of the
23 it came -- this has to do with the affidavit and the date. 23 premise have standing. We've briefed that piece.
24 THE COURT: One question. 24 THE COURT: If they're aggrieved by the results.
25 MR. KEKER: One question. 25 MR. KEKER: Yes, sir. And then it's also our
- 156
DAILY COPY RECROSS - DELANEY 154 1 position that this is cumulative, that the first one leads to
1 RECROSS EXAMINATION 2 the second one, leads to the third one, sort of the taint runs
2 BY MR. KEKER: 3 all the way through. The search warrant eventually is based on
3 Q. What date was your affidavit signed? I'm showing you 4 the fruits of these wiretaps. So for all these reasons, they
4 Exhibit 9. 5 have standing.
5 A. September 25th. 6 And then just to an anticipate, Mr. Patterson's phone --
6 Q. Okay. And whose dating is that? 7 Mr. Dick Scruggs and, I think, Mr. Patterson -- but I'm not
7 A. That's mine. 8 sure about that. But I know Dick Scruggs is on the Patterson
8 Q. And that says 25? 9 tap that we'll get to later on.
9 A. Yes, sir.
10 THE COURT: All right. You may proceed. Evidently,
10 Q. Okay. Thank you.
11 the Government's not concerned with that issue then, are you?
11 MR. SANDERS: Your Honor, no further questions as far
12 You haven't brought it up.
12 as the September 25th affidavit.
13 MR. SANDERS: That's right. Your Honor, first, we're
13 THE COURT: Okay. You may step down. We'll call you
14 aware that the Government doesn't waive standing. The
14 back out in a couple of minutes.
15 Government cannot waive standing. In this instance, frankly,
15 THE WITNESS: Thank you, sir.
16 Your Honor, we looked at the information; we looked at the law
16 THE COURT: All right. We'll be in recess ten
17 minutes. 17 out there. We knew if a party was aggrieved they had standing,
18 (AFTER A SHORT BREAK, THE PROCEEDING CONTINUED) 18 and it's certainly our position that the defendants are
19 (CALL TO ORDER OF THE COURT) 19 aggrieved by the information elicited from the wiretaps.
20 THE COURT: All right. There's also an affidavit for 20 THE COURT: Well, the question I brought up was
21 a wiretap on -- I believe it was October 16th on Patterson's 21 whether they were aggrieved by this 30-day period from which
22 phone; is that correct? 22 the first wiretap was issued till 30 days later when it was
23 MR. KEKER: Yes, Your Honor. 23 renewed.
24 THE COURT: Is that your next one? 24 MR. SANDERS: Yes, sir.
25 MR. SANDERS: Yes, sir, Your Honor. 25 THE COURT: And probable cause or information had to
scruggs Unsigned Page - - 156

Exhibit B

157 -
1 be presented at that renewal that would point toward the -- DAILY COPY DIRECT - DELANEY 159
2 that would justify the renewal of it. So evidently, you're not 1 A. Yes, sir.
3 concerned with any standing of these three defendants to object 2 MR. KEKER: Well, I object because he didn't say he
4 to information that was gained from this first 30-day period 3 knows the amount of the bribe. Does P.L. know the amount is
5 where Mr. Balducci's phone was wiretapped? 4 all he said, nothing said about the bribe.
6 MR. SANDERS: Your Honor, as I said, we don't believe 5 MR. SANDERS: I'm sorry. I'll rephrase, Your Honor.
7 we waived it; and we may well address it at a later time. At 6 THE COURT: Okay.
8 this point, however, we see the case law saying that if a 7 BY MR. SANDERS:
9 person is aggrieved -- and we believe that, for instance, on 8 Q. Did Patterson tell P.L. the amount?
9 A. Yes.
10 October 18th, all three defendants were greatly aggrieved by
10 Q. Did Patterson also tell Balducci that P.L. doesn't know
11 information elicited from the wiretap.
11 what it's about or anything?
12 THE COURT: Okay. That would be within the thirty
12 A. Yes, he did. I believe that's on the transcript of the
13 days.
13 call.
14 Q. All right. Why did you not put that in the October 16th
15 THE COURT: All right. Good. All right, Mr. Keker.
15 affidavit?
16 MR. KEKER: Your Honor, if we're going to go back to
16 A. Again, I'm trying to establish probable cause that
17 Mr. Sanders to elicit information and I cross, that's all 17 Mr. Patterson is aware of the conspiracy and using his phone in
18 right. Otherwise, I'll do it. 18 connection with the conspiracy. We used the elements of that
19 THE COURT: It's up to you gentlemen. 19 call where he said he knew the amount. In a subsequent call, I
20 MR. KEKER: I'll do it either way, Mr. Sanders. 20 believe on October 10th, where, again, it's Mr. Patterson
21 MR. SANDERS: Your Honor, do you want argument now on 21 speaking with Mr. Balducci. Mr. Patterson's asking
22 the September 25th? 22 Mr. Balducci when the order's going to be sign, and he says
23 THE COURT: No. Do you want to go forward with the 23 P.L. wants to know. I took those two phone calls to establish
24 second affidavit? 24 the probable cause that Mr. Patterson and Mr. Blake had reason
25 MR. SANDERS: Yes, sir. 25 to believe that they were involved in this conspiracy.
- -
1 THE COURT: All right. You may proceed. 1 Q. Based on the September 27th and the October 10th call?
2 DIRECT EXAMINATION 2 A. Yes, sir.
3 BY MR. SANDERS: 3 Q. All right. They also refer to a September 27th call
4 Q. Okay. Mr. Delaney, I am going to talk to you now about 4 between -- or I think it's a conversation between Balducci and
5 the Patterson wiretap. The affidavit was signed -- when did 5 Judge Lackey. All right? And this is -- I'll try to
6 you sign the affidavit for the Patterson -- 6 paraphrase this, but it's essentially there's a statement
7 A. I believe it was October 16th. 7 Balducci makes -- he says to Judge Lackey, "There ain't another
8 Q. All right. They refer in their motion to three different 8 soul in the world that knows about this, okay? And this is --
9 statements made, and I'm going to read those statements to you 9 this is -- this is taken care of."
10 and have you explain to us why they weren't contained in the 10 And then later, Balducci says -- Lackey asks, "When you
11 Patterson wiretap. The first one they talk about is that you 11 tell Mr. Scruggs or Dickie or whatever I ought to call him --
12 put in the affidavit that Patterson's talking to Balducci, and 12 you tell him that this is a first-time venture with me." And
13 you point out that P.L. Blake -- that Patterson has spoken to 13 then Balducci says, "He's not even involved at that level,
14 P.L. Blake. And you said that he's already talked to P.L. and 14 Judge." Balducci goes on to say, "The way this will work is
15 that P.L. knows the amount. 15 I'll just go to him at some point in time and say that I cured
16 A. Uh-huh (yes). 16 a problem that you had, and you need to recognize the problem
17 Q. Did P.L. Blake -- did Patterson also tell P.L. Blake on 17 that I have cured. That's how it works." Do you remember
18 the telephone call that P.L. doesn't know what it's about or 18 those statements, Balducci speaking to Judge Lackey?
19 anything? 19 A. I do.
20 MR. KEKER: I think it was misspoken. It was a phone 20 Q. And why were those statements not included in the
21 call not with P.L. Blake but with Patterson Balducci. 21 October 16th affidavit?
22 BY MR. SANDERS: 22 A. Again, I didn't give those statements as much weight as I
23 Q. That's right. It's Patterson and Balducci. And does 23 gave previous statements. Earlier on the 27th, we intercepted,
24 Patterson tell Balducci that P.L. knows the amount of the 24 I believe, two calls on Mr. Balducci's phone. I believe one
25 bribe? Do you remember that? 25 with Mr. Patterson, and I believe the other one was Mr. Biden
scruggs Unsigned Page 157 - -

Exhibit B

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DAILY COPY DIRECT - DELANEY 161 DAILY COPY CROSS- DELANEY 163
1 (phonetic); I'm not sure. Mr. Balducci says in those two 1 Q. What did you think that was?
2 separate phone calls he's on his way to Oxford. I believe he 2 A. Sweet potatoes was their code word for the order.
3 says he's going to go see either the Scruggs Law Firm or 3 Q. Okay. At the end of that conversation, Balducci talks
4 Mr. Scruggs or words to that effect. 4 about he was going to get back to Judge Lackey about, quote,
5 One of the phone calls he tells, I believe Mr. Patterson, 5 that other deal.
6 he's on his way to go see Sid to pick up that thing. We know 6 A. Yes, sir.
7 from phone calls during that morning that he's on his way to 7 Q. The defendants say that this is strong evidence that
8 head south, which is Calhoun City, south of Oxford. So based 8 Balducci did not understand Lackey's request for the payment to
9 on those earlier phone calls, on the 27th, I gave much more 9 be connected with the order being entered in the Scruggs case.
10 weight to the veracity of those phone calls than I did to that 10 Is that how you saw?
11 conversation that Mr. Balducci had with the judge while 11 A. No. I think it's pretty clear what Mr. Balducci meant by
12 conducting elicit -- 12 the other deal was the second half of the money on
13 Q. Okay. Was one of the conversations to which you just 13 September 27th even though he'd originally agreed on 40,000.
14 referred with Steve Patterson when he's talking about this 14 He delivered 20,000; and during that conversation, he said he
15 order with Balducci? Did that conversation take place before 15 would get the rest of them later. And that's what I took that
16 Balducci meets with Judge Lackey? 16 October 10th conversation to mean was the other deal was the
17 A. Yes, it does. 17 remaining 20,000 of the 40,000.
18 Q. Okay. So did you believe that Balducci wasn't telling the 18 MR. SANDERS: Tender the witness, Your Honor.
19 truth here? 19 THE COURT: Very well.
20 A. I had reason to doubt what he was saying. 20 CROSS-EXAMINATION
21 Q. Okay. And then based on subsequent conversations, who 21 BY MR. KEKER:
22 else did you think knew or at least you believed had probable 22 Q. Agent Delaney, the October 16 affidavit in support of the
23 cause to know that there was a crime taking place? 23 Patterson wiretap repeats, in essence, all the allegations with
24 A. Subsequent conversations we believe that Mr. Scruggs, 24 all the omissions that were in the one we just talked about,
25 based on -- on Mr. Balducci saying he's going to the law firm 25 right?
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DAILY COPY DIRECT - DELANEY 162 DAILY COPY CROSS- DELANEY 164
1 before that day, we had surveillance locate Mr. Balducci 1 A. Yes, sir.
2 returning to the Scruggs Law Firm after the first bribe payment 2 Q. Okay. So we won't go over that again. But all of that
3 on September 27th. We had the four-minute phone call September 3 applies to this, too --
4 27th immediately after Mr. Balducci had agreed to the bribe 4 A. Yes, sir.
5 payment with the judge in Calhoun City. 5 Q. -- what we talked about. And then what's new here --
6 We had, I believe, a surveillance later in October showing 6 let's start with the big one. You had a tape that you knew
7 Mr. Patterson and Mr. Balducci visiting the Scruggs Law Firm 7 amounted to Mr. Balducci telling Judge Lackey that Scruggs did
8 while these payments were going on -- in the midst of these 8 not know about the bribe that was being paid on September 27th;
9 bribe payments. 9 is that a fair characterization?
10 Q. Let me ask you this: You mentioned just a minute ago -- 10 A. That's what he told him, yes, sir.
11 you said something about Sid. What did you say about Sid? 11 Q. And you didn't think it was true?
12 A. One of the intercepted phone calls on the morning of the 12 A. I had reason to doubt it, yes, sir.
13 27th was, I believe, Mr. Balducci told Mr. Patterson that he 13 Q. Okay. Now, in your FBI training, do they tell you that
14 was going to see Sid to pick that thing up. 14 when you're preparing an affidavit for probable cause you are
15 Q. Okay. 15 to present a fair picture of all the evidence to the judge to
16 A. And, you know, later in the day after Mr. Balducci had 16 let him decide?
17 dropped off the money and an order -- we did in fact recover an 17 A. I believe we're suppose to present evidence that I think
18 order from the judge's office. 18 gives probable cause that would lead to the approval of the
19 Q. Okay. And then one final point they make about this. 19 warrant.
20 They say that on October the 10th that Balducci called Judge 20 Q. Okay. So your job -- the FBI training tells you your job
21 Lackey and asked when he could pick up the sweet potatoes. 21 is to present the information to the judge that will allow you
22 A. Uh-huh (yes). 22 to get a warrant whether or not it is a fair picture of what's
23 Q. Did you think Tim Balducci was going to pick up sweet 23 going on?
24 potatoes from Judge Lackey? 24 A. No, I don't think that's accurate.
25 A. No, sir. 25 Q. Does the FBI care about whether or not they present to a

Exhibit B

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DAILY COPY CROSS- DELANEY 165 DAILY COPY CROSS- DELANEY 167
1 judicial officer -- 1 Scruggs, who Balducci said didn't know anything about it, is
2 A. Yes, they do. 2 improper, unfair, and undercuts probable cause for the
3 Q. -- a search warrant affidavit -- whether or not it's a 3 conspiracy that they're alleging exists. If they'd just said,
4 fair picture of what's going on? 4 Patterson and Balducci are doing something, I suppose --
5 A. Yes, they do. 5 THE COURT: Well, if he just said Patterson was doing
6 Q. And how does the judge weigh whether or not it's a fair 6 something, that's sufficient to tap his phone, which is who
7 picture if you leave out all the favorable information or all 7 they tapped. I'll reserve ruling on that. Go ahead.
8 the information that doesn't fit your view of the events? 8 MR. KEKER: And then I go back to the point this
9 A. I think the fact that you have those calls from 9 Patterson tap picked up --
10 September 27th in the morning -- I think that's -- there's 10 THE COURT: Picked them up later. But that's a
11 enough weight given to know that -- that establishes the 11 question of whether or not probable cause was presented to tap
12 probable cause that Mr. Patterson was involved in the 12 the phone that was tapped, which is Patterson. But whether --
13 conspiracy and using his phone to do so. 13 okay. But you may proceed. You know, I agree that by that
14 Q. Okay. You think you had enough on Mr. Patterson. And the 14 Patterson phone tap that information came in as a result that
15 allegation, though, was that the conspiracy included Dick 15 pointed to any one of these three defendants. Then these three
16 Scruggs. 16 defendants would have cause to complain of the probable cause
17 A. Yes, sir. 17 that was presented for that wiretap.
18 Q. And you were making quite a point in this affidavit that 18 But still, the probable cause that the Court was dealing
19 Dick Scruggs was an important member of this conspiracy. 19 with was really about Patterson, not about these three
20 A. I think there was enough probable cause to establish that, 20 defendants. But I'll -- you go ahead. I'll reserve ruling on
21 yes. 21 that and certainly going to have to hear more information.
22 Q. And did you leave out of your affidavit that Judge Lackey 22 MR. KEKER: I think though since -- we are stuck
23 made a real yeoman's effort, a tremendous effort, in 23 with -- I know one of my colleagues has made a James motion,
24 September 27th to get some evidence on Dick Scruggs; and he 24 that the Government is going to take advantage of the fact that
25 failed? 25 they've charged a conspiracy to say that everybody is liable
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DAILY COPY CROSS- DELANEY 166 DAILY COPY CROSS- DELANEY 168
1 A. That conversation was not in the affidavit, no. 1 for everything; and that's what they're alleging here. And if
2 Q. Okay. Balducci said to him, "This is just between you and 2 they'd just thought they were investigating Steve Patterson, I
3 me." You didn't tell them that in the affidavit, did you? 3 agree we'd have a different situation. But that's not what --
4 A. No, sir. 4 that's not what the special agent --
5 Q. And he repeated it, "This is just between you and me." 5 THE COURT: Suppose they had only put in Patterson in
6 And Lackey said, "All right." That's not in the affidavit, 6 the affidavit; we want to tap Patterson's phone.
7 right? 7 MR. KEKER: Then they'd have to show that he was
8 A. No, sir. 8 committing -- there's probable cause to believe that Patterson
9 THE COURT: Counsel, just a moment. There's nobody 9 was committing a crime, and they'd have to say what that was.
10 rising from the prosecutor's table; but in my interest of 10 THE COURT: Right. And they could have said, We
11 judicial economy, this is an affidavit from a wiretap on 11 believe he's involved in a conspiracy with Balducci to bribe
12 Patterson's phone, not Mr. Scruggs' phone. You're not trying 12 Judge Lackey. And they would have had that, assumed they could
13 to introduce probable cause that Mr. Scruggs had committed a 13 have had that probable cause.
14 crime by this affidavit. They're trying to introduce probable 14 MR. KEKER: I think that's true. And if they'd said
15 cause to tap Mr. Patterson's phone. 15 that, the magistrate might have looked at it and said, Well,
16 MR. KEKER: I hear Your Honor, but that's -- the 16 what in the world -- I mean, this doesn't make any sense. This
17 affidavit that was presented is that there is probable cause to 17 whole -- the whole thrust of why they're trying to get a
18 believe that Tim Balducci, Dickie Scruggs, Steven Patterson, 18 probable cause determination is the Scruggs firm was involved
19 and so on, P.L. Blake -- they are alleging -- this agent is 19 in it.
20 asserting here there's probable cause to believe there was a 20 That's what they're -- that's what they say the case is
21 conspiracy, and these people were members of it. 21 about, and that's what we say -- I mean, if Balducci and
22 And in order to evaluate that affidavit, it's our position 22 Patterson -- we say that Balducci and Patterson were doing
23 that leaving out not just significant but totally exculpatory 23 whatever they were doing all by themselves without the
24 information about Blake, who said he didn't know anything about 24 knowledge of these folks, at least through this period that
25 it, and leaving out totally exculpatory information about 25 we're talking about --

Exhibit B

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DAILY COPY CROSS- DELANEY 169 DAILY COPY CROSS - DELANEY 171
1 THE COURT: Well, all right. But -- we'll go 1 MR. SANDERS: That's right.
2 forward. 2 THE COURT: Is that right, Mr. Keker?
3 MR. KEKER: And I think, Your Honor, we've briefed 3 MR. KEKER: If I could just have a moment, Your
4 this. We can go on to the next one. The big headline here is 4 Honor.
5 there's exculpatory information about P.L. Blake that -- I 5 THE COURT: Okay.
6 mean, let me ask a couple of questions about that because I 6 MR. KEKER: Well, actually, could I ask a couple of
7 didn't get that. 7 questions to show that there's a --
8 BY MR. KEKER: 8 THE COURT: Ask him a couple?
9 Q. On September 27, you have a phone call that says P.L. 9 MR. KEKER: Yes, sir.
10 Blake doesn't know what this money is for, doesn't know 10 THE COURT: All right. You may.
11 anything about it, right? 11 CROSS-EXAMINATION
12 A. That's what Patterson tells Balducci, yes. 12 BY MR. KEKER:
13 Q. Okay. And you decide to leave that out of an affidavit 13 Q. Now, by the October 24 affidavit, which is Exhibit 31 to
14 that says there's a conspiracy involving Blake? 14 Mr. Dooley's declaration, you just dropped P.L. Blake out of
15 A. Uh-huh (yes). 15 this conspiracy, didn't you?
16 Q. And the reason you do that is you found out by October 10 16 A. Yes, I did.
17 P.L. Blake knows something about an order? 17 Q. And that's because you determined that you were wrong in
18 A. Yes. 18 what you'd said on October 16 about P.L. Blake?
19 Q. And so, therefore, you connected in your mind the order 19 A. I don't believe we came up with any further evidence to
20 with the money; and you concluded that P.L. Blake knew about 20 show that he was involved, no.
21 the -- some connection between the two? 21 Q. And did you tell the judge, when you came for the
22 A. I didn't know definitely; I thought there's probable cause 22 October 24 extension, that what you'd told them before about
23 to believe that. 23 P.L. Blake hadn't panned out; and you just were dropping P.L.
24 Q. And based on that belief, you chose to leave out a full 24 Blake, including exculpatory information, everything about P.L.
25 and complete statement from -- in a conversation between 25 Blake, out of this affidavit? You want me to show you the
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DAILY COPY CROSS- DELANEY 170 DAILY COPY CROSS - DELANEY 172
1 Patterson & Balducci that P.L. Blake didn't know anything about 1 affidavit?
2 this? 2 A. If you'd like.
3 A. Yes. 3 Q. Show you Exhibit 31. The question is, P.L. Blake is gone.
4 Q. And you chose to not -- I'm not going to let the judge 4 He's not a member of the conspiracy. There's no information
5 know about that? 5 about him. There's nothing about calls to him. And you didn't
6 A. Yes. 6 tell the judge that what you'd said before turned out not to be
7 MR. KEKER: That's enough for this one, Your Honor. 7 true.
8 We will rely on our briefing. We've got other points. 8 A. He's not listed on the affidavit, on the extension, no.
9 THE COURT: Very well. Do you have any redirect? 9 Q. Okay. And you didn't tell the judge --
10 MR. SANDERS: No, Your Honor, no redirect on that. 10 A. Well, I mean, the fact that he's omitted from the
11 THE COURT: All right. All right. The Balducci cell 11 affidavit, I think, is pretty clear that we no longer consider
12 phone extension, that was the 30-day extension that came up 12 him or, at that time, didn't consider him a subject.
13 earlier in our discussion, was signed on October 29th. Are you 13 Q. That's all I have. And the rest that's in here is an
14 ready to proceed on that, Mr. Keker? 14 accumulation of what we've talked about so far?
15 MR. KEKER: Yes, sir. 15 A. Yes, sir.
16 THE COURT: Or you, Mr. Sanders? 16 Q. Okay. With the same omissions and the same issues that
17 MR. SANDERS: Yes, sir, Your Honor. And as I noted 17 we've talked about?
18 in our response to their motion, I think in their motion they 18 A. Yes, sir.
19 just -- they don't point to any specific omissions or what they 19 MR. KEKER: That's all I have on that one, Your
20 call misleading statements with respect to the extension 20 Honor.
21 affidavit. They just rely on what they've argued beforehand, 21 THE COURT: Very well. Anything else?
22 so we would stand on what we've done thus far in here. 22 MR. SANDERS: No, Your Honor.
23 THE COURT: All right. In other words, there are no 23 THE COURT: Very well.
24 new omissions or misleading statements listed in the motion 24 MR. KEKER: We've got the search warrant affidavit,
25 concerning the cell phone extension. 25 Your Honor. Should we go with that one?

Exhibit B

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1 THE COURT: Yes, we can go forward. 1 A. I don't have it with me.
2 MR. SANDERS: Your Honor, I believe with the search 2 Q. Could we get a copy to put up in front of him in case he
3 warrant, as with the extension on the wiretap -- I don't think 3 needs to refer to it?
4 they refer to any more specific omissions or misleading 4 MR. SANDERS: And I've got a copy for him, Your
5 statements; and I think we simply refer back to what we've done 5 Honor, if I can --
6 so far. 6 THE COURT: All right.
7 THE COURT: Very well. Do you agree with that, 7 BY MR. KEKER:
8 Mr. Keker? 8 Q. I'm going to give you two, one is dated -- well, you tell
9 MR. KEKER: No, I don't, Your Honor. 9 me what they are dated. I think they are --
10 THE COURT: With what do you disagree? 10 A. 11/2 and 11/7, sir.
11 MR. KEKER: Well, there's a lot in the search warrant 11 Q. And those are the dates of the interviews?
12 affidavit that has even more omissions. I mean, for example, 12 A. Yes, sir.
13 by now the March 2007 meeting is reduced to this, that 13 Q. And these are interviews with Mr. Balducci?
14 Balducci, Patterson, Scruggs, Backstrom, and Zach Scruggs met 14 A. Yes, sir.
15 in the offices of Scruggs Law Firm in Oxford for purposes of 15 Q. And you and another agent conducted them?
16 discussing ways and means of corruptly influencing the outcome 16 A. Yes, sir.
17 of Jones, et al v. Scruggs, et al. Now we've heard a lot more 17 THE COURT: Are you claiming in this, even though you
18 about that. There's a lot more about that meeting than that. 18 didn't put anything in your motion about omissions or
19 But in addition, by this time, they have Mr. Balducci; and 19 misleading statements -- is that what you're claiming about the
20 Mr. Balducci sat down and talked to them. And Mr. Balducci has 20 defects in this affidavit?
21 said things I'd like to ask Agent Delaney about that are left 21 MR. KEKER: Yes, sir.
22 out of this affidavit and so on. I mean, there's a number of 22 THE COURT: All right.
23 things in this affidavit. 23 BY MR. KEKER:
24 THE COURT: All right. Since there is an 24 Q. In the search warrant affidavit, which is dated
25 affidavit -- since there is a search warrant, there was an 25 November 26 and which was written after you interviewed
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1 affidavit, then the Court has determined there was probable 1 Mr. Balducci on 11 -- on November 2 and November 7, correct?
2 cause to look on the face of the affidavit. So, therefore, the 2 A. Yes.
3 burden comes to the defendant to attack the affidavit. 3 Q. You stated -- and all you stated about March 2007 in the
4 MR. KEKER: Okay. Let me get my -- 4 Scruggs office is what I just read, that five people met in the
5 MR. SANDERS: Your Honor, under Franks, even to have 5 offices of the Scruggs Law Firm in Oxford for the purposes of
6 a hearing, they've got to make a substantial preliminary 6 discussing ways and means for the purpose of corruptly
7 showing. And in their motion, they didn't mention any of this 7 influencing the outcome of Jones et al. V. Scruggs, right?
8 that Mr. Keker is talking about; so I don't think they've made 8 A. Yes.
9 the showing that would entitle them to the hearing at this 9 Q. And at that point, you knew Mr. Balducci, who you arrested
10 stage. 10 and was cooperating, had said that at that meeting Dick Scruggs
11 MR. KEKER: I don't think that's true. 11 said he was not asking Balducci for anything illegal but would
12 THE COURT: The question is the suppression of a 12 Balducci see if the judge would move the matter to arbitration.
13 search warrant affidavit, they can -- the Court will allow them 13 You knew that you were -- that he'd said that to you, and you
14 to attack the affidavit, but the burden switches from the 14 omitted it from the search warrant affidavit.
15 Government to justify the search to the defendant to show why 15 A. There was some disagreement -- I'm not going to say
16 there was no probable cause in the affidavit. 16 disagreement -- misunderstanding about that statement. That
17 MR. KEKER: Then, beginning with -- 17 was my understanding the way he said it at the time. We later
18 THE COURT: It may not be in the motion, but I'm 18 talked to him about it. He said that was not his recollection
19 going to let the -- try to establish something anyway. 19 of that meeting.
20 CROSS-EXAMINATION 20 That information went in the affidavit subsequently after
21 BY MR. KEKER: 21 that where we discussed it again. And we talked about it; and
22 Q. Agent Delaney, do you have your 302? 22 we determined that it, you know -- that it is what myself and
23 A. (Shaking head negatively.) 23 the other agent heard. And at that time, Mr. Balducci was not
24 Q. The 302 of your interview with Mr. Balducci on November 2, 24 going to dispute it. He said, "If that's what you heard,
25 2007? 25 that's what I said."

Exhibit B

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1 Q. You had notes of your interviews on the 2nd and 7th of 1 Mr. Balducci was not.
2 November with Mr. Balducci, didn't you? 2 Q. Did you come back to the judge --
3 A. Yes. 3 A. No, I did not. No, I did not.
4 Q. And when you checked your notes and what your notes told 4 Q. Let me finish the question. Did you come back to the
5 you, you were right in what you put in the report? 5 judge who signed the search warrant affidavit and say, Judge, I
6 A. Yes, sir. 6 had mistaken memory; and I said some things in my affidavit
7 Q. Dick Scruggs said he was not asking Balducci for anything 7 that I now know are wrong. I'm sorry. I just wanted you to
8 illegal? 8 know that?
9 A. Yes. 9 A. No, I did not.
10 Q. And you didn't -- just tell us why you didn't put that 10 Q. Did you put in the search warrant affidavit that Balducci
11 into the search warrant affidavit. Why didn't you say -- 11 told Dick Scruggs that Balducci would see Judge Lackey and ask
12 instead of saying they met for purposes to figure out 12 him as a favor to rule for arbitration in the case, as a favor?
13 corrupt -- how to corruptly influence the outcome of the case, 13 A. No.
14 why didn't you say, two weeks ago the persons there -- I wasn't 14 Q. Did you tell -- in the affidavit, you talk about, very
15 there, the person that was there told me that Dick Scruggs said 15 briefly, the March 28 meeting where Balducci went down to see
16 he didn't want to do anything illegal; but will you please talk 16 Judge Lackey, right?
17 to your friend, the judge, about getting this case to 17 A. Yes, sir.
18 arbitration? Why didn't you put that in the affidavit? 18 Q. And you said about it -- well, the judge can read it. He
19 A. Again, that issue -- when the affidavit was written, I was 19 requested a private meeting; he was not a party. During the
20 under the -- I was under the belief, based on the subsequent 20 course of the conversation, Mr. Balducci made corrupt overtures
21 interview with Mr. Balducci, that there was elicit conversation 21 to Judge Lackey who reported the same to federal officials.
22 in that March 20th interview. I did not check my notes when I 22 A. Uh-huh (yes).
23 talked to Mr. Balducci the second time. I was going off my 23 Q. At that time, did you know it took him two weeks?
24 memory. He assured me that there was. 24 A. No.
25 When I subsequently later went back -- and this was after 25 Q. Did you tell him that Mr. Balducci had told you that he'd
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1 the affidavit was signed -- I checked my notes and saw that in 1 told Judge Lackey that this was for his personal benefit? He
2 fact that's what my notes reflected, that he said there was 2 asked him for a favor and said it was for his personal benefit?
3 nothing illegal -- Mr. Scruggs was not asking him to do 3 A. No, I didn't put that in there.
4 anything illegal. 4 Q. Okay. Why didn't you put that in?
5 Q. You also said that Dick Scruggs stated that Judge Lackey 5 A. Because, again, I think -- as the investigation moved
6 ought to move the case to arbitration since it was the correct 6 along, I think it showed that it wasn't just for a personal
7 thing to do. Why didn't you put that in the affidavit? 7 favor; it was more than that.
8 A. Because, again, that was back in March. Subsequently, as 8 Q. But you're telling the judge about these meetings. You're
9 the investigation rolled on, it showed that that was not the 9 taking the trouble to tell him about the meetings, but you're
10 case. That may have been at that time; but subsequently, it 10 not telling him what actually happened at the meetings. That's
11 was -- it appeared that there was more to it than that, just 11 okay?
12 asking the judge to do -- to move the case to arbitration, but 12 A. I didn't put it in.
13 to actually, you know, bribe the judge to have it done. 13 Q. You said that -- we just read it -- that at the meeting,
14 Q. But -- okay. You're telling the judge who you're 14 you said to the judge, who decided the search warrant issue,
15 submitting the search warrant affidavit to that the meeting in 15 that at the meeting he made corrupt overtures; but you didn't
16 March was for the purpose of discussing ways and means of 16 put in the affidavit that Balducci said he would benefit if
17 corruptly influencing the outcome of the case; and you don't 17 Judge Lackey ruled in favor of the Scruggs Law Firm, ruled for
18 put in that Scruggs said he didn't want to do anything illegal, 18 arbitration.
19 the right thing to do was to move it to arbitration? 19 And that he further stated it would be considered a
20 A. Again, the first interview, that's what I had in my notes. 20 personal favor if Judge Lackey ruled for arbitration, and
21 The subsequent interview with Mr. Balducci, I did not have my 21 arbitration was the correct legal way to settle the matter.
22 notes in front of me when I spoke to him. He assured me that's 22 And that Balducci also mentioned that he had mentioned the
23 not what happened; I misunderstood him. When I later -- after 23 position of, of counsel when the judge was ready to retire; but
24 the affidavit was signed -- checked my notes, confirmed with my 24 that the offer of, of counsel was not related to or offered as
25 partner, I felt that I was correct in the first instance; and 25 an incentive to rule as the -- as Balducci asked. That's what

Exhibit B

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1 he told you, right? 1 Mr. Backstrom was not in the office and would not be there, and
2 A. That's what he told me. 2 he came back.
3 Q. So did you tell the judge in the November 26th search 3 Q. Did he tell you any conversations he had with anybody at
4 warrant affidavit when you said corrupt overtures had been made 4 the Scruggs firm about the work that he was doing on the voir
5 that Balducci told you the two things were not tied together 5 dire or the jury instructions?
6 and no corrupt overtures had been made? 6 A. No, I don't recall him telling me that.
7 A. That's correct. 7 MR. KEKER: Your Honor, I believe the rest --
8 Q. Did you tell him that? 8 THE WITNESS: You talking about on that particular
9 A. No. We relied on, basically, that information came from 9 day, sir, on November --
10 what the judge -- the judge was still under the impression that 10 BY MR. KEKER:
11 the two were tied. Mr. Balducci's version was they were not 11 Q. Well, I mean, did he ever go back and have a conversation
12 tied. 12 that wasn't recorded where he talked about work on the jury
13 Q. Did you tell him it took the judge two weeks to figure out 13 instructions and voir dire?
14 that maybe there was a problem? 14 THE COURT: Are you saying that relates to --
15 A. Again, at the time -- I did not know at the time it took 15 MR. KEKER: No, it's omitted. I'm trying to
16 the judge two weeks. 16 establish it, and I want to point out that it's not in the
17 Q. I'm sorry? 17 affidavit.
18 A. I did not know at the time there was a two-week lag time 18 THE WITNESS: I'm not sure. The only two occasions I
19 between Mr. Balducci's visit and the judge reporting it to the 19 recall him going over to the Scruggs Law Firm was on the
20 United States Attorney's Office. 20 November 19th incident we just discussed and then on
21 Q. Why didn't you tell him at least that one side, Balducci 21 November 5th when he picked up a package at the financial
22 said there wasn't any corrupt overture; it wasn't meant that 22 office, not the main office.
23 way? 23 MR. KEKER: Your Honor, I think the rest of the
24 A. I don't know. I just left it out. 24 omissions and misstatements are -- in this affidavit are things
25 Q. You did it on purpose? 25 that we have talked about that have accumulated from the other
- -
1 A. No, I did not do it on purpose. 1 ones; so I think that's the only thing I have. May I check
2 THE COURT: Excuse me, gentlemen. May I have a copy 2 with my colleagues?
3 of this affidavit for the search warrant? 3 THE COURT: Check and see. While you're doing that,
4 MR. KEKER: Yes, sir. Here's the affidavit. You 4 is there anything in this affidavit, anything else, that you
5 want a copy of the 302, Your Honor? 5 want to call attention to that you haven't -- I don't recall
6 THE COURT: No, just the affidavit. Thank you. 6 you've said anything about this affidavit about false
7 BY MR. KEKER: 7 statements or mis --
8 Q. Did -- were you aware of Balducci having contacts with 8 MR. KEKER: Well, I can go back over them. We
9 people at the Scruggs firm after he was arrested that were not 9 believe that the -- almost all of this is false. The
10 recorded? 10 description of the March meeting at the Scruggs Law Firm, we've
11 A. I'm sorry. Say that again, sir. 11 talked about. The meeting with Judge Lackey, which is referred
12 Q. Did you send Balducci to the Scruggs Law Firm to try to 12 to in here, we've talked about. We think those are false.
13 gather evidence without wiring him up? 13 THE COURT: Wait just a minute. What meeting with
14 A. No, not to gather evidence. It was simply to try and see 14 Judge Lackey that was false?
15 if he could get Mr. Backstrom to come to his office so he could 15 MR. KEKER: The description of the meeting with Judge
16 talk to him in private. 16 Lackey on May 28th -- excuse me -- March 28th, the initial
17 Q. Did you send him to the Scruggs office on November 19? 17 meeting where he went down there. And that's on page 1 of the
18 A. I asked him to go over there and see if Mr. Backstrom 18 affidavit. And he said he requested a private meeting. At the
19 would come back to his office with him. 19 bottom of the page, it says, "Balducci, during the course of
20 Q. And he was not wired? 20 the conversation -- next to the last line. "Balducci made
21 A. No, sir, he was not. 21 corrupt overtures to Judge Lackey, who reported the same to
22 Q. Did he tell you about the conversation he had with people 22 federal officials."
23 at the Scruggs firm while he was there? 23 And we believe that that, given context, is false. It's
24 A. He told me he went in, spoke with one of the secretaries; 24 false in various ways. First of all, he knew and omitted the
25 I think he didn't know who it was. They told him that 25 very important fact that Judge Lackey didn't know whether or

Exhibit B

- -
1 not corrupt -- that's what he's been saying here, took him six 1 like to rely on an order to compel binding arbitration. That's
2 months to figure out if anything was corrupt; and that's only 2 nonsense. On March 19th, they filed a motion to compel
3 because he raised $40,000. 3 arbitration. According to Balducci, they said in March that
4 The second thing is that -- what Balducci had told him by 4 that's what they wanted; and now somebody is saying in this
5 this point is that at that meeting Balducci said he would 5 unrecorded call they've changed their strategy and want --
6 benefit if Judge Lackey ruled in favor; I'm here for a personal 6 THE COURT: I know. But what we're dealing with here
7 favor. I would benefit if you ruled for arbitration. And he 7 is not ultimately whether it was true or false but whether this
8 also said arbitration was the correct legal way to settle the 8 agent knew it was true or false. And do you have any evidence
9 matter. Balducci also offered Lackey a position of counsel 9 of that?
10 when the judge was ready to retire; but he said, the offer of, 10 MR. KEKER: I do, Your Honor. The agent, the one who
11 of counsel was not related to or offered as an incentive to 11 sat with Mr. Balducci a month before he signed this, less than
12 rule as the -- as Balducci had asked. 12 a month before he signed this, and took down and wrote this
13 And so, the person doing it has said, I was not making 13 302, took his notes, wrote it.
14 your quid pro quo corrupt overture. The person receiving it 14 THE COURT: Well, this agent says that Balducci told
15 took two-weeks to report it to the federal government and 15 him that. Now, what evidence do you have that that's not true?
16 apparently a lot of phone calls and -- 16 MR. KEKER: That's not what he said -- I mean, they
17 THE COURT: Well, is that false? What's in here 17 couldn't have changed their strategy -- it doesn't make any
18 that's false? 18 sense that they changed their strategy, if their strategy in
19 MR. KEKER: Well, during the course of the 19 March was to go to arbitration.
20 conversation, Mr. Balducci made corrupt overtures to Judge 20 THE COURT: Well, whether or not they used good sense
21 Lackey who reported the same to federal officials. 21 in changing their strategy is not in issue. The issue is did
22 THE COURT: Well, would that not be subject to 22 this agent have a knowledge that your interpretation -- that
23 interpretation what you meant by -- 23 this statement is false. That's what I'm interested in.
24 MR. KEKER: I think that's fair; but if I were a -- 24 MR. KEKER: Then the May 4 call we've talked about
25 THE COURT: You're arguing that corrupt is equal to 25 before. There's exculpatory information that was omitted from
- -
1 illegal here, criminal. 1 the May 4 call, one sentence. May 9, tremendous amount of
2 MR. KEKER: Yes, sir. 2 exculpatory information we've gone over. I can go over it
3 THE COURT: Okay. I get your point now. 3 again if you'd like.
4 MR. KEKER: The affidavit is submitted for a search 4 But they completely left out that there was no discussion
5 warrant they say that they're investigating bribery, public 5 of money, no discussion of, of counsel position. He omitted
6 corruption. The whole emphasis is on a criminal act. Probable 6 that Lackey viewed an arbitration request as a favor on which
7 cause to show that a violation of 666 is happening. 7 to get credit. He omitted that Balducci said that this fax
8 THE COURT: All right. What else? The other 8 order that he sent over was just something to look at.
9 statement that you say is false? 9 And most importantly, he omitted that by May 9th, Lackey
10 MR. KEKER: The May 3rd meeting, first of all, 10 had indicated that Balducci had agreed with him, the case
11 implied -- which is on page 2 -- implies that it was recorded 11 should go to arbitration. And they didn't make any plans to
12 because there -- it's being quoted. We now know that it wasn't 12 meet again. And then the next thing -- so he leaves all that
13 recorded. And there's this statement about Judge Lackey that 13 out.
14 they had changed their strategy. I don't think there's any 14 The next thing he puts in is May 21. And out of May 21,
15 evidence of that. The May 4 call is omitted completely. 15 he says, Mr. Balducci assured Judge Lackey that nobody other
16 THE COURT: Wait a minute. Wait a minute. There's 16 than Balducci and Scruggs knew of the arrangement suggestion by
17 no evidence of that perhaps, but you're saying it's false. Do 17 Balducci to Judge Lackey. That's not what he said. He said
18 you have evidence that it's false? 18 nobody knows about this but you and me.
19 MR. KEKER: I think I do. I mean, what Balducci had 19 There wasn't any arrangement. And indeed, in the May 21
20 told him by the time of this affidavit was that in March they 20 discussion -- we've been over this, but I'll just mention it
21 were talking about, Would you go see your friend, Judge Lackey, 21 again -- he omitted that Lackey had been pursuing Balducci
22 and explain to him that we'd like this case to go -- don't want 22 during the day, two earlier calls. He omitted that he assured
23 anything illegal but love to have it go to arbitration, the 23 Judge Lackey --
24 legally correct thing. 24 THE COURT: I know. We've gotten over that omission
25 Now he's saying they've changed their strategy and would 25 stuff. Let's just talk about what you claim is false. That's

Exhibit B

- -
1 what my question was. 1 THE COURT: If you want to, for the record, you may.
2 MR. KEKER: Okay. Well, I believe those things 2 MR. SANDERS: Yes, sir.
3 render the statements that's in here false, things I've said 3 THE COURT: The affidavit, however, speaks for itself
4 already. And especially Mr. Balducci assured Judge Lackey that 4 based on the record so far. But you may proceed.
5 nobody other than Balducci and Scruggs knew of the arrangements 5 MR. SANDERS: Okay.
6 suggested by Balducci to Judge Lackey. That suggests there was 6 REDIRECT EXAMINATION
7 an arrangement, suggested by Balducci to Judge Lackey. 7 BY MR. SANDERS:
8 And what actually -- what Balducci said is, "Frankly, I 8 Q. Agent Delaney, you talked about -- and I want to clarify
9 think we're right; and I think the law's on our side. And I 9 this language in your 302 with respect to what you believe
10 think probably had I never even approached you, you'd probably 10 Balducci told you in the first meeting and what Balducci told
11 had the right result for us in this thing. My goal is simply 11 you about in the second meeting. All right? You know what I'm
12 to tell you where I am interested in this thing and help guide 12 talking about?
13 you to where I thought this thing legally could come." 13 A. Yes, sir.
14 What arrangement? That's not an arrangement. And yet he 14 Q. All right. Explain what you thought Balducci said the
15 says there is an arrangement. And then it jumps. And we 15 first time you met with Balducci with respect to what
16 believe this is a significant omission. And I am not going to 16 Mr. Scruggs said to him at that first meeting.
17 go over it again. It jumps to September 18. It goes from 17 A. In the first meeting, I -- he told me -- or what I
18 nothing to September 18. And then in September 18, we talk 18 believed he told me was, in that meeting on March 28 when it
19 about what's wrong with it from then on. 19 was him and Mr. Patterson and Mr. Scruggs and I believe
20 THE COURT: Okay. Thank you. 20 Mr. Backstrom and the other Mr. Scruggs, Mr. Scruggs said he
21 MR. KEKER: Your Honor, before I sit down, we're 21 wanted him to go see Judge Lackey but would not ask him to do
22 working out this Jencks Act material with the Government, but I 22 anything illegal.
23 just wanted to put on the record that the Government has agreed 23 I wrote a draft of that report. I subsequently showed
24 to give us the 302s of Agent Delaney's interviews that he had 24 that to Mr. Balducci to have him read it. And he advised me
25 referred to during his testimony and the interviews with Lackey 25 and said, I don't -- that was not the content of that meeting
- -
1 on April 24, May 3rd, and September 18. And we'd like to get 1 in March, that he was asking me to do something illegal.
2 it before he's excused while this motion hearing is still going 2 Q. Okay. So what -- let me -- I'm trying to clarify this.
3 on in case there's something in there that we need to ask him 3 Let me see if I'm correct. Is Tim saying that Mr. Scruggs told
4 if we can reopen based on what we have. And I think we're 4 him, don't do anything illegal?
5 getting it as soon as possible. 5 A. That was my interpretation of what he said on the first
6 THE COURT: They've agreed to give it to you now? 6 meeting on November 2nd. When he looked at the draft of my
7 MR. KEKER: Yes, sir. 7 report, he saw that and said, "No, that's not accurate. That's
8 THE COURT: Well, that's very generous of them. 8 not what happened at that March meeting. He didn't tell me not
9 MR. KEKER: Following the law is never generous, Your 9 to do anything illegal."
10 Honor. It's just the law. 10 Q. And that's what you came to believe when you signed the
11 THE COURT: Well, it says after direct examination, 11 affidavit?
12 before cross-examination, they're required to give it to you. 12 A. Yes.
13 Now they're giving it to you about a month before the trial 13 Q. All right. Now, a couple of things that he mentioned in
14 date. So I think that is generous. Do you have anything else 14 passing. He said that it took Judge Lackey six months to
15 you want to add to this search warrant -- 15 figure out if anything corrupt was taking place. Did it take
16 MR. KEKER: Your Honor, if I can just get this 16 Judge Lackey six months to determine whether anything corrupt
17 straight. It was May 3rd, April 24, and May 22. 17 was taking place?
18 THE COURT: Very well. 18 A. No. By corrupt, I mean, are we talking about illicit or
19 MR. SANDERS: Your Honor, I can. I can clear up a 19 are we talking about criminal?
20 couple of things that Agent Delaney talked about. But frankly, 20 Q. He said corrupt. I don't know what he meant.
21 Your Honor, I think everything the Court needs to find probable 21 A. I mean, corrupt -- certainly illicit in those first
22 cause is in the search warrant itself. 22 meetings from Judge Lackey's perspective.
23 THE COURT: Well, I'm sure you feel that way. 23 Q. And also, they've referred to a couple of different times
24 MR. SANDERS: I can clear up those points, Your 24 on the May 3rd statements made that you put it in quotes in the
25 Honor. 25 affidavit, statements made by, I believe, Balducci on May 3rd.

Exhibit B

- -
DAILY COPY REDIRECT - DELANEY 193 DAILY COPY RECROSS - DELANEY 195
1 Did you put them in quotes to mislead the Court as if it were a 1 THE COURT: Okay.
2 recording? 2 MR. KEKER: That he just talked about.
3 A. No. 3 RECROSS-EXAMINATION
4 Q. Why did you put it in quotes? 4 BY MR. KEKER:
5 A. That was taken from a statement from Judge Lackey. 5 Q. Agent Delaney, when did you write the draft report that
6 Q. And finally, what date did you sign this search warrant 6 later Mr. Balducci had trouble with? I don't think we have
7 affidavit? 7 that one for you.
8 A. I believe it was November 26th. 8 A. I've got it. It's dated November 12th.
9 Q. All right. It was after November 1st? 9 Q. So on November 12, you wrote your -- what became your 302;
10 A. Yes. 10 and then you say you had Balducci read it?
11 Q. And did Balducci wear a wire into the Scruggs Law Firm on 11 A. Yes.
12 November 1st? 12 Q. He said this morning that he never saw it. He said that
13 A. Yes, he did. 13 you read it to him. Do you remember which is the truth?
14 Q. And did he talk to each of the defendants? 14 A. No. I specifically -- I gave those reports to him and had
15 A. Yes, he did. 15 him read it.
16 Q. Did he talk to each of the defendants about the bribe he 16 Q. And there was some disagreement on his part about this
17 was paying to Judge Lackey? 17 part of the report where Dick Scruggs said he didn't want him
18 A. He discussed the order that he'd picked up from Judge 18 to do anything illegal?
19 Lackey earlier the morning of November 1st after he delivered 19 A. Yes.
20 $10,000. 20 Q. And you then went back to your original notes from the
21 Q. Did he discuss the bribe they were paying to Judge Lackey 21 interview, as well as consulted the other FBI person there,
22 to Zach Scruggs? 22 Agent Surles?
23 A. Yes. 23 A. Yes.
24 Q. What did he say exactly? 24 Q. And you decided you were right and Balducci was wrong?
25 A. He showed him the order; and sounds like from the 25 A. I felt more comfortable that that was the accurate
- -
DAILY COPY REDIRECT - DELANEY 194 DAILY COPY RECROSS - DELANEY 196
1 recording of the conversation, that they read the new paragraph 1 reflection of what he said that evening, yes.
2 that Judge Lackey had inserted into that order that he picked 2 Q. Do you still have those notes?
3 up November 1st and discussed the language in that order. 3 A. Yes.
4 Q. Did he talk about paying for it? 4 Q. Do you have the draft 302 that you showed to Mr. Balducci
5 A. Well, Mr. Balducci made the comment that -- saying, you 5 and had him read?
6 know, let's get this right; you're paying for it; let's get it 6 A. No, I don't have the draft.
7 the way you want it. 7 Q. But you have the notes?
8 Q. Who was standing with him when he said that? 8 A. Yes.
9 A. I believe it was Mr. Backstrom and Mr. Zach Scruggs. 9 MR. KEKER: Your Honor, we'd ask for an order
10 Q. All right. And then did he talk to Mr. Dick Scruggs? 10 reserving all notes in the case, specifically those.
11 A. Afterwards, yes, in private. 11 THE COURT: I'll take that under advisement.
12 Q. And did he talk about a bribe they were paying to Judge 12 MR. KEKER: Nothing further. Thank you.
13 Lackey with Mr. Scruggs? 13 THE COURT: All right. You may step down. Give that
14 A. Yes. 14 to Mr. Keker. That's your affidavit, Mr. Keker.
15 Q. What did he say about the bribe in that instance? 15 MR. KEKER: Yes, sir.
16 A. Basically, to paraphrase the conversation -- 16 THE COURT: As to these motions concerning the
17 THE COURT: Counsel, the affidavit speaks for itself. 17 adequacy of the probable cause in the affidavits for these
18 MR. SANDERS: Yes, sir, Your Honor. No further 18 wiretaps and for the search warrant, the defendants attacked
19 questions. 19 the adequacy of the probable cause by bringing out alleged
20 THE COURT: We've already gone over that. You may 20 omissions and alleged false statements.
21 step down. 21 The law, of course, is to the effect that, when deciding,
22 MR. KEKER: May I question, Your Honor, just about 22 that the Court should look at whether the affidavits establish
23 that redirect? 23 probable cause with those statements included, if they had been
24 THE COURT: What part of the redirect? 24 included. And, so, what I would like to see -- have from
25 MR. KEKER: Just looking at the draft report. 25 counsel on both sides is -- I've taken notes, and I know

Exhibit B

197 199
1 basically from those notes basically what the defendants claim 1 It's four o'clock. I think we've gotten through the longest
2 were the omitted statements that should have been put in and 2 motions that will be involved. We have left the motion to
3 what the statements are that the defendants claim were false. 3 dismiss Counts 2, 3, and 4 because of alleged lack of
4 But I would like -- I'd like a memorandum from the defendants 4 jurisdiction. And the motion to exclude the 404(b) evidence,
5 listing those alleged false and omitted statements that you 5 that is, the prior bad acts evidence, prior similar bad acts.
6 claim make the probable cause defective. 6 And then we also have the motion of Zachary Scruggs and
7 MR. KEKER: Would it be helpful if we -- rather than 7 Sid Backstrom to sever their trial from that of Richard Scruggs
8 just argue about this, if we just wrote the affidavit with 8 and the motion for change of venue. I think we'll recess
9 highlighting this was -- this part is omitted, should have been 9 today. We've been in Court a pretty good while today. And
10 there. And then this part is false. I mean, just sort of 10 take those up at nine-thirty tomorrow morning. We'll start
11 rewrote the affidavit? Or do you want just a legal memorandum? 11 with the motion to dismiss Counts 2, 3, and 4 for lack of
12 THE COURT: Well, I just want a listing of what you 12 jurisdiction and then go from that to the 404(b) motion.
13 claim. And the Government, also, if you want to do that also. 13 All right, gentlemen, thank you very much. We'll be in
14 You seem to have already listed them from your argument here. 14 recess until nine-thirty.
15 Also, there's still this question in the Court's mind 15 (THE HEARING RECESSED AT 3:54 p.m.)
16 about what established probable cause, for example, the 16
17 Patterson wiretap and the Balducci wiretap. It's not contested 17
18 by either party that if someone is aggrieved over a wiretap 18
19 they have a standing to complain about it. 19
20 But the question in the Court's mind at this time is, What 20
21 do they complain about? Do they complain about the probable 21
22 cause to establish the wiretap of the person who owned the 22
23 phone or against whom the wiretap was sought, or can they 23
24 complain about whether any probable cause existed against the 24
25 person who was complaining about it, the aggrieved party whose 25
198 200
1 phone was not tapped? 1 CERTIFICATE
2 In other words, there's no question that the three 2
3 defendants in this case have standing to complain about the 3 I, Rita Davis Sisk, RPR, BCR, CSR #1626, Official Court
4 legality of the Patterson wiretap. Now, what can they complain 4 Reporter for the United States District Court, Northern
5 about? Can they complain about whether probable cause existed 5 District of Mississippi, was present in court during the
6 against these three defendants when that wiretap was sought? 6 foregoing matter and reported said proceedings
7 Or can they only complain about whether probable cause existed 7 stenographically.
8 to tap Patterson's phone? 8 I further certify that thereafter, I, Rita Davis Sisk,
9 Now, that's a question I'd like to hear some law about. 9 RPR, BCR, CSR #1626, have caused said stenographic notes to be
10 transcribed via computer, and that the foregoing pages are a
10 As I mentioned earlier, the three defendants in this case never
11 true and accurate transcription to the best of my ability.
11 had any of their phones tapped. And if the Patterson wiretap,
12 Witness my hand, this 20th day of February, 2008.
12 for example, were illegal, then they have the right to attack
13
13 it. But to prove it was -- but was it illegal if it did not
14
14 have probable cause against these three defendants in the
15
15 affidavit, since it was only the Patterson phone that was
16
16 wiretapped?
17
17 I think there's an arguable basis to conclude that -- to RITA DAVIS SISK, RPR, BCR, CSR #1626
18 justify that wiretap, the Government has to show there was 18 Official Court Reporter
19 probable cause to tap Patterson's phone and did not have to 19
20 show probable cause that there was a crime being committed by 20
21 these three defendants. So I'd like to hear your memorandum on 21
22 that. All right. And I'd like to get that -- I'd like to get 22
23 that by Monday. 23
24 MR. KEKER: End of the day Monday or -- 24
25 THE COURT: End of the day. All right. Let's see. 25

Exhibit B
Exhibit C
Exhibit C
Exhibit C
Exhibit C

USA V Zach Scruggs: Motion To Reconsider Order Disallowing Discovery

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USA V Zach Scruggs: Motion To Reconsider Order Disallowing Discovery

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Case 3:07-cr-00192-NBB-SAA Document 319 Filed 03/02/11 Page 1 of 13

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

v. CRIMINAL CASE NO. 3:07CR192-b-a

DAVID ZACHARY SCRUGGS

MOTION TO RECONSIDER ORDER DISALLOWING DISCOVERY

an effort to promote an efficient use of the Court’s time.

I. The Court’s Duty to Allow Discovery

issues including issues that have not been previously explored.

(quoting Townsend v. Sain, 372 U.S. 293, 322 (1963))(emphasis added).

II. The Insufficiency of Prior Criminal Discovery in this 2255

holes that remain to this day.1

to say the opposite.2

determine whether Petitioner participated in a bribery scheme, since mere knowledge of

had been dismissed for lack of evidence.4

III. The Revelation of New Evidence Since Petitioner’s Plea

And no one corrected the record.

insurmountable ethical problems.6

conflict of interests, undermining Petitioner’s constitutionally protected right to effective

Petition Exh. C., at 188.

dispatched quite quickly.

2006) (describing this as “a classic catch-22”).

III. This Court Can Permit the Discovery of the Truth.

the record with new unsubstantiated (and mostly irrelevant) representations.

Government merely offers more unsubstantiated representations. The Government now

do so in their briefing to date. 9

access to the Government’s sources.

Respectfully submitted, this 2nd day of March, 2011.

/s/Edward D. Robertson, Jr.

Pro hac vice

/s/ Edward D. Robertson

1 UNITED STATES DISTRICT COURT

17 For the Plaintiff: United States Attorney's Office

21 For the Defendant

1 For the Defendant

14 J. RHEA TANNEHILL, JR., ESQ.

22 Court Reporter: Rita Davis Sisk

1 (CALL TO ORDER OF THE COURT)

2 THE COURT: All right. We have several matters set

3 for hearing this morning. The order in which we're going to

4 take them up is the motion by Mr. Tony Farese to withdraw as

6 we'll take up the matter of whether Mr. Ken Coghlan should be

7 allowed to represent Mr. Scruggs after he's previously

8 represented a co-defendant who may be a witness against

10 Then we'll take up this motion by the defendants to seal a

11 previous motion filed for a continuance and an extension of the

12 pretrial motion deadline. And then we'll take up the

13 defendant's motion for discovery, additional discovery.

14 As far as the matter of Mr. Tony Farese, his motion to

15 withdraw earlier was denied because that would have left

16 Mr. Zach Scruggs without counsel. I understand, now, that

17 Mr. Zach Scruggs has employed other counsel. And, so,

18 Mr. Farese's motion to withdraw will be granted. He's no

19 longer counsel in the case.

20 As far as Mr. Coghlan is concerned -- is he here?

21 MR. KEKER: I'm John Keker for Mr. Scruggs; and

22 Mr. Coghlan is here, Your Honor, sitting next to Mr. Scruggs.

23 And he is available -- both of them are available to answer any

24 questions or make any explanations that you are interested in.

25 THE COURT: All right. Well, as I understand it,

1 Mr. Keker, you or a member of your firm had called my chambers

2 and had asked to give an explanation as to why Mr. Coghlan