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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA, Plaintiff, v. RICHARD F. DICKIE SCRUGGS, Defendant. ) ) ) ) ) ) ) ) )

No. 09 CR 002 Judge Glen H. Davidson

BOBBY B. DELAUGHTERS EMERGENCY MOTION TO QUASH SUBPOENA Co-Defendant, BOBBY B. DELAUGHTER, by and through his attorneys, THOMAS ANTHONY DURKIN and LAWRENCE L. LITTLE, pursuant to Fifth Amendment of the Constitution of the United States, respectfully moves this Court, on an emergency basis, to quash the subpoena that counsel for Co-Defendant Scruggs has served upon him in the above-captioned case, which commands DeLaughters appearance on March 26, 2012, at 10:00 a.m. In support of this motion, Defendant, through counsel, shows to the Court the following: 1. On July 28, 2009, DeLaughter pled guilty to one count of attempting to obstruct,

influence, and impede an official corruption investigation and grand jury proceeding in violation of 18 USC 1512(c)(2). On November 13, 2009, DeLaughter was sentenced to 18 months in the custody of the Bureau of Prisons, and a period of two years supervised release. DeLaughter is currently serving his supervised release portion of his sentence in the Eastern District of Louisiana, and must request permission of the Court to travel outside that district. 2. On March 14, 2012, undersigned counsel, Durkin, received a letter from

Scruggss counsel containing a witness subpoena commanding DeLaughters appearance at the

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hearing.1 This subpoena requires DeLaughter to physically appear in the Federal District Courthouse in Oxford, MS, in the context of the 2255 proceeding filed by Defendant Scruggs on March 26, 2012, at 10:00 a.m. A copy of this letter, the subpoena, and the check for fees is attached hereto as Exhibit A. 3. Counsel for DeLaughter have repeatedly informed Scruggss counsel that

DeLaughter will assert his Fifth Amendment privilege not to be compelled in any criminal case to be a witness against himself. Counsel for DeLaughter also so notified government counsel of DeLaughters position. Further, Scruggs lawyers have so acknowledged DeLaughters right to assert his Fifth Amendment privilege in its March 7, 2012, Motion in Limine regarding DeLaughters potential testimony. (Docket #173.) In this pleading, Scruggs seeks either judicial immunity for DeLaughter or an adverse inference against the government for its failure to seek immunity for DeLaughter. 4. In its Response (Docket #185), the government cites Fifth Circuit precedent, U.S.

v. Chagra, 669 F.2d 241 (5th Cir. 1982), to the effect that judicial immunity is not appropriate under these circumstances. While undersigned counsel do not wish to argue the position of either party on this issue, counsel feel compelled to remind the Court and the government that, contrary to its suggestion in its response, one of the Fifth Amendments basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Ohio v. Reiner, 532 U.S. 17, 21 (2001) (internal quotations and ellipses omitted). Further, while the Court has yet to rule on Scruggs motion in limine, it would seem that should the Court not see fit to issue judicial immunity as the government suggests is the law of the Circuit, there will be no possibility that DeLaughter will have any testimony to give. Likewise, while undersigned
1

Counsel had agreed to accept service on DeLaughters behalf.

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counsel do not profess to be familiar enough with Scruggs claims in this 2255 proceeding, at a glance the very relevance of DeLaughters testimonyeven if he were to be immunizedseems questionable, at best. 5. Undersigned counsel had proposed that, under these circumstances, the parties

stipulate that if DeLaughter were called as a witness, he would assert his Fifth Amendment privilege, so as to avoid the unnecessary and pointless process of requiring DeLaughter to seek permission of the Court and travel from New Orleans to Oxford. While the government is willing to enter into this stipulation, counsel for Scruggs rejected this proposal on March 22, 2012; and is insistent upon DeLaughters physical appearance at the Oxford courthouse on Monday morning. 6. Scruggss counsels insistence on DeLaughter physically appearing in Court and

compelling DeLaughter to the witness stand only to assert his valid constitutional right is both vexatious and wrongnot unlike the impropriety of a party calling a witness to the stand only for that witness to assert his Fifth Amendment right in front of the jury. See, e.g., U.S. v. Bowman, 636 F.2d 1003, 1013 (5th Cir. 1981) (There is strong Fifth Circuit precedent against allowing witnesses to assert the Fifth Amendment in the jurys presence. The general rule is that once the trial court has satisfied itself as to the validity of the witnesss Fifth Amendment claim, it may, in its discretion, decline to place the witness on the stand for the purpose of eliciting a claim of privilege); U.S. v. Lacouture, 495 F.2d 1237, 1239-40 (5th Cir. 1974) (affirming trial court ruling that witness, who stated to court during in-chambers examination that she would assert Fifth Amendment, could not testify before the jury and that counsel could not make reference to her failure to testify); United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)

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([i]f it appears that a witness intends to claim the privilege as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand); Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970) (observing the rule that a witness should not be put on the witness stand for the purpose of having him exercise his privilege before the jury). 7. Additionally, the insistence upon requiring DeLaughter to appear only to assert a

valid constitutional privilege, arguably runs counter to the spirit, if not the letter, of Rule 4.4 of the Mississippi Rules of Professional Conduct, entitled Respect for Rights of Third Persons. This section provides that: In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. While Scruggss attorneys no doubt wish to represent their client zealously, this should not come at DeLaugters expense. 8. Lastly, as noted above, DeLaughter is currently serving the supervised release

portion of his sentence, which requires permission from the Court to travel outside the Eastern District of Louisiana. It is incongruous to counsel that this Court would wish to grant such permission for such a meaningless appearance. DeLaughter is making great personal strides to put this painful episode with Scruggs, Peters and the like behind him and has relatively new employment in New Orleans. Not only can he not afford to miss work and jeopardize his employment, it is not in his interest to become part of the media circus this hearing for Scruggs is likely to attract. In short, he simply should not be compelled to appear under all of the foregoing circumstances.

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Respectfully submitted,

s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN

s/ Lawrence L. Little LAWRENCE L. KITTLE, Attorneys for the Defendant Bobby B. DeLaughter.

DURKIN & ROBERTS 2446 North Clark Street Chicago, IL 60614 (312) 913-9300

LAWRENCE L. LITTLE & ASSOCIATES, PA 829 North Lamar Boulevard, Suite 6 Oxford, Mississippi 38655 (662) 236-9396

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CERTIFICATE OF SERVICE I hereby certify that the foregoing BOBBY B. DELAUGHTERS EMERGENCY MOTION TO QUASH SUBPOENA was served on March 23, 2012, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district courts system as to ECF filers.

/s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN 2446 North Clark Street Chicago, IL 60614 (312) 913-9300

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