scruggs requests home detention ahead of hearing

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

v. NO. 3:09CR002-GHD

RICHARD F. SCRUGGS

PETITIONER’S MOTION FORHOME DETENTION PRIOR TO AND DURING THE HEARING

Petitioner respectfully requests that this Court order that Petitioner be confined in

his home in Oxford and then a hotel in Aberdeen, with appropriate electronic monitoring if

necessary, during the preparation for and the pendency of the upcoming hearing.

This Court has ordered that the U.S. Marshall’s Office transport Petitioner “by the

most direct and shortest” route to appear before the Court by 10:00 am on March 26. D.E.

168. Petitioner’s counsel has made arrangements with the Marshall’s Office to have

Petitioner brought to the Lafayette County jail approximately ten days prior to confer with

his attorneys and review documents in preparation for his hearing. His attorneys have

established a dedicated workspace in Oxford, Mississippi, which contains hundreds of

pages of documents relating to the underlying civil case of Wilson v. Scruggs and the

original criminal case. Arrangements have been made so that Petitioner will then be

transferred to the Monroe County jail for the actual hearing in Aberdeen.

The Government understands that it is difficult to consult with a key witness who is in

county lockup, with its rigid policies concerning visitation and strict limitations on the

number of documents a prisoner may have in his possession. In order to make Joey

Langston more readily available to the Government attorneys to prepare him to serve as a

witness in hearings for David Zachary Scruggs’s post-conviction motion, the Government

Case: 3:09-cr-00002-GHD-SAA Doc #: 174 Filed: 03/12/12 1 of 4 PageID #: 1673

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requested that Joey Langston be assigned to home detention for this very purpose. See Exh.

A, Order of J. Michael Mills, 1:08-cr-00003, Doc #: 45 (“The Government asserts that home

detention will facilitate all sides who need access to the defendant in related cases and that

home detention would save the taxpayers money.”) The Court granted that request. Id.

See also Doc #46 (modifying the order).

Likewise here, if Petitioner is incarcerated in the county jails, it will unduly interfere

with his ability to review the reams of pertinent documents and will make it unduly

difficult for his attorneys to consult with him as they prepare for his hearing. Petitioner

merely requests that he be detained in his own home during prehearing preparation and in

a hotel in Aberdeen, Mississippi during the hearing. Other than travelling to and from the

court and his attorneys’ offices, Petitioner will otherwise remain detained. He will take his

meals in the home, hotel, or attorneys’ workspaces.

The Fifth Circuit has recognized that “incarceration and home detention are alternative

punishments.” U.S. v. Ferguson, 369 F.3d 847, 850 (5Th Cir,2004). Prior to a trial on the

merits, it is common for a defendant to be altogether released on bail. “In a number of

instances it has been held, under the particular circumstances that the court had the power,

pending determination of a habeas corpus proceeding on the merits, to admit the petitioner

to bail[.]” 56 ALR 2d 668 §1. In Levy v. Parker, 396 U.S. 1204 (1969), Justice Douglas held

that, although the district court, the court of appeals, and the circuit justice had all denied

bail, since the applicant had raised “substantial issues” on appeal, he should be granted bail

until the full court could pass on the application. In this Motion, Petitioner is not


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requesting outright release on bail, but instead the more modest relief that would facilitate

his preparation for the upcoming hearing.

Petitioner was on bond without incident the entire time before his voluntary

surrender. See Exh. B., 3:07-cr-00192-NBB-SAA Doc #: 12 (J. Alexander setting terms for

release on bond). Petitioner voluntarily submitted himself to incarceration and has now

served the bulk of his time, even if habeas relief is denied. Just as Petitioner’s pretrial

release presented no real flight risk, his current request for home and hotel detention

present no risk. Petitioner’s Bureau of Prisons security classification is "community

custody,” which is the lowest level possible, permitting him to work out in the community

with only civilian supervision.1

Accordingly, Petitioner respectfully requests that this Court order that he be

detained to his home and hotel during his stay in Mississippi, prior to and during the

hearing in this Court.

Respectfully submitted, this 12th of March, 2012.

/s/Edward D. Robertson, Jr.Edward D. Robertson (pro hac vice)Michael C. Rader, MB#100205BARTIMUS FRICKLETON ROBERTSON & GORNY11150 Overbrook Road, Suite 200Leawood, KS 66211913-266-2300

1 See U.S. Department of Justice, Federal Bureau of Prisons, Program Statement P5100.0, available athttp://www.bop.gov/policy/progstat/5100_008.pdf (Defining ‘community custody’ as “The lowest custodylevel assigned to an inmate which affords the lowest level of security and staff supervision. An inmate whohas COMMUNITY custody may be eligible for the least secure housing, including any which is outside theinstitution's perimeter, may work on outside details with minimal supervision, and may participate incommunity-based program activities if other eligibility requirements are satisfied.”)


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Email: [email protected], Frickleton, Robertson & Gorny, P.C.715 Swifts HighwayJefferson City, Missouri 65109573-659-4454573-659-4460 (fax)[email protected]@bflawfirm.com

Mike Moore, MB#3452MIKE MOORE LAW FIRM, LLC10 Canebrake Blvd., Suite 150Flowood, MS [email protected]

CERTIFICATE OF SERVICE

I, Edward D. Robertson, Jr., hereby certify that on March 12, 2012, 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, Jr.


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scruggs requests home detention ahead of hearing

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