I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.

BlogRoll

Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

Judge Biggers’s memorandum opinion (like Gaul) is divided into three parts:  Skilling and actual innocence; ineffective assistance; and the claim of prosecutorial misconduct.

The actual innocence discussion represents the best factual summary of the events bribery scheme in Scruggs I that I’ve seen, with some additional information– that the phone calls Balducci said he’d made (and that Backstrom denied had occurred) are corroborated by phone records, that show Balducci did call the office at those times.   Obviously, there’s more to the known facts than Judge Biggers states, but he lays the ones he needs out pretty clearly.

For the ineffective assistance claim, he does a variation on the dog bite defense:  He rules Zach didn’t file it on time, there wasn’t a conflict (because any notion that Langston might be a hostile witness arose later), and there was no cause or prejudice from any asserted conflict.  Any one of those rulings causes his claim to fail.

The ruling on prosecutorial misconduct similarly rests on multiple foundations, with the central point that there was essentially no dispute that Zach Scruggs’s defense team had been informed of the actual fact– that Langston was not a witness against Zach Scruggs– before the plea.  He does make clear that he viewed what the prosecutor did as no more than negligence.

I’ll post some highlights in this and a couple of follow-ups.  Meanwhile, here’s the opinion.

Actual Innocence

The judge frames the actual innocence position of the parties.  Zach Scruggs argues he knew nothing of a bribe.  The Government responded by arguing that they could have used an alternative theory of wire fraud. The problem with that, Judge Biggers recognizes, is that the Government didn’t really spell out in its factual basis what crime Zach Scruggs was failing to disclose:

It is not evident from reviewing the factual basis and information supporting Petitioner’s plea that the Government intended to charge Petitioner for misprision of a conspiracy to commit wire fraud on a money/property theory. This issue would be simplified if the Government had set out in its factual basis or information what felony Petitioner had misprisioned, but the factual basis and information state only that Petitioner committed misprision of a felony without referencing the underlying felony.

Judge Biggers then declined to decide the Governments fraud claim:

The court, however, declines to reach the merits of  the Government’s money/property theory of the case, although it is arguably viable, finding that it is not necessary to determine this issue in order to resolve the case.

Why not? Because a jury could have concluded that Zach Scruggs knew about the bribery scheme.

Was Backstrom Credible?

The heart of the ruling that a jury could have found Zach Scruggs knew is a discussion of phone calls and conversations, largely involving Sid Backstrom, where the judge concludes that a jury could have believed Balducci instead of Backstrom.  Judge Biggers explains why.

After another meeting between Balducci and Judge Lackey on September 21, 2007, Balducci immediately placed a four-minute phone call to The Scruggs Law Firm and, according to Balducci’s testimony, he told Sidney Backstrom that Judge Lackey wanted $40,000 to enter an order compelling arbitration in the Jones case. Balducci testified that he asked Backstrom whether “y’all” or “they” would reimburse him for the $40,000. Balducci testified that Backstrom replied that he would get back to him and let him know

At the evidentiary hearing, Backstrom denied that this call ever took place, and he denied knowing that a bribe had been paid until a later date. Balducci testified that he remembered the call clearly, and the record shows that a four-minute call from Balducci to The Scruggs Law Firm did occur at 10:08 a.m. on that date. A reasonable juror could choose to believe Balducci over Backstrom and could conclude that this call discussing the bribe did take place based on Balducci’s testimony and the telephone records introduced into evidence. The question of credibility of conflicting testimony is solely the responsibility of the jurors. See United States v. Abuhasan, 402 Fed. Appx. 905, 907, 2010 WL 4746224, at *1 (5th Cir. 2010); Fifth Circuit Pattern Jury Instructions (Criminal Cases), No. 1.08, (2001 ed.), cited infra.

Balducci testified that two or three days after September 21, 2007, he talked to Backstrom again on the phone about the $40,000, and Backstrom stated: “You’re covered.” Again, Backstrom denies that this call occurred. Phone records were introduced at the evidentiary hearing showing that on September 21, 2007, Balducci placed a two-minute call to The Scruggs Law Firm, which Balducci testified was to Backstrom; and, again, a reasonable juror could find from this record and Balducci’s testimony that this call and conversation did take place.

Latter, Balducci and Patterson discussed all this with Scruggs, hatching a scheme to cover the repayment of the bribe money:

On October 18, 2007, Balducci delivered $10,000 in cash to Judge Lackey and picked up the order. Balducci testified that he was at Steven Patterson’s office later that day when  Patterson was on the phone with Richard Scruggs. Balducci stated that Patterson gave him the phone to speak with Richard Scruggs. Richard Scruggs told Balducci on that call that he had developed a cover story on how to reimburse Balducci and Patterson for the $40,000 payment to Judge Lackey. Balducci testified that Richard Scruggs told him that he would reimburse them under the cover of hiring Balducci for $40,000 to create a voir dire template for an upcoming jury trial. On a recorded call from October 18, 2007, Patterson advised Balducci that Richard Scruggs wanted Balducci to drop off the order at The Scruggs Law Firm and to pick up a package and a $40,000 check off of Richard Scruggs’ desk. Balducci, when delivering the corrupt order to The Scruggs Law Firm for editing and approval, saw Zachary Scruggs, Petitioner herein, and gave the order to Petitioner. Balducci testified that Petitioner stated to him: “Thanks,” “You’re a good friend; you’ve done a good job.” Balducci then picked up the package containing voir dire materials and a $40,000 check from Richard Scruggs’ desk.

After leaving the firm, Balducci called Backstrom, who was out of town. The telephone conversation was recorded. Balducci told Backstrom that he had delivered a copy of “those papers we’ve been waiting on.” Backstrom asked if “[e]verything looked just right, just like we wanted it?,” and Balducci stated, “Yeah.” Balducci told Backstrom, “[J]ust so you’ll know . . . Dick hired me to prepare voir dire for the upcoming Katrina trial y’all got in Jackson County.” Backstrom replied: “Oh great. Well. Well, that uh, that’s a good deal for everyone.” Balducci then stated: “So all that worked out uh, it all worked out good for everybody, if you know what I mean.” Balducci testified that when he stated “you know what I mean,” it was a reference to the fact that “we had completed the sham transaction and the order had been delivered and the money had been paid.” Backstrom, on the other hand, testified that he did not know about the bribe at this point and did not understand this conversation to be regarding a bribe. Balducci testified that it was never intended that he do the voir dire work and that the work was simply the cover under which Richard Scruggs reimbursed him for the bribe payments to Judge Lackey. Patterson testified that he thought the jury assignment was legitimate but also the method by which Richard Scruggs was reimbursing them for the bribe money. A reasonable juror could conclude, as Balducci testified, that the voir dire assignment was nothing more than a cover and dismiss Backstrom’s testimony that he did not understand Balducci to be referencing the bribe scheme. In order to conclude that the voir dire assignment was legitimate, one would have to reach the unlikely conclusion that Balducci was expected to perform the work for no remuneration since $40,000 was the exact amount of the bribe at this time. (An additional $10,000 was later added.)

Balducci also called Patterson after dropping off the order and picking up the $40,000 check. The recorded telephone conversation went as follows: Patterson asked: “You leave it on his desk?” Balducci replied: “I did better than that. I left it with Zach.” Patterson responded: “Oh, okay. Very good. Alright, thanks. Alright.”

On October 31, 2007, the arbitration order had not been entered by Judge Lackey, and Balducci called Backstrom and told him that he was dropping by the next day. Backstrom stated: “I wanted to ask you too . . . oh, um, about that thing that you been working on, the jury research?” “Um, I, I still haven’t gotten that document.” “And Dick’s about to melt down ‘cause, you know, you know why.” Balducci replied that he was dropping by the next day to resolve the matter. Backstrom admitted at the evidentiary hearing that in this telephone exchange, he and Balducci were talking in code and not really discussing the voir dire assignment. Backstrom admitted that in this conversation, his reference to “jury research” was really a reference to the order from Judge Lackey.

It’s at best puzzling– and more likely additional evidence of Backstrom’s lack of credibility that he admits he understood they were talking in code here but not in a conversation just previously.

From there, the Judge turns to the critical November 1st conversation, about which more in a bit.

 

10 comments to Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

  • PostHoleDigger

    He does make clear that he viewed what the prosecutor did as no more than negligence.

    So, mere negligence is acceptable? I guess any prosecutor that gets caught witholding information that was required to be disclosed can always plead stupid.

  • Anderson

    PHD, no question things are weighted too heavily towards The Man — but in this case, thank god, the apparent misconduct did not make a difference.

    One can argue whether Zach is guilty. One cannot, I humbly submit, argue that NO REASONABLE JURY could have found him guilty.

  • NMC

    Anyone who thinks Zach’s claims about prosecutorial misconduct or ineffectiveness came close hasn’t been reading cases on either subject.

    As much as I hate the application of the requirement of showing cause (some sort of specific defect in performance) and prejudice (that at some level it expected the outcome), it’s application here seems really easy and not the least troubling. Did Zach show on ineffectiveness that his lawyer didn’t do something he should have done? Nope. Did he show anything effected the outcome? Nope.

    There’s a similar problem for his argument about the prosecutor’s conduct. Did the prosecutor make a mistake? Yes. Did it have any impact? No. No impact, no error, full stop. Yes, there is a harm to the notion of harmless error; this case doesn’t illustrate that problem because Zach knew the truth about what the prosecutor had said before he entered his plea.

  • PostHoleDigger

    I agree that it didn’t matter here – just tired of seeing prosecutors get a pass on just about everything. Their skirts should be the whitest around.

  • Tim

    While I don’t agree there was misconduct in this instance bec of Sanders’ testimony which was unrebutted and the letter from Farese, etc. The Courts look the other way too often when prosecutors do wrong. I had a prosecutor alter statements of a witness (cut and pasted), then slam us with the cut and pasted testimony in the middle of a 7 week trial. I would have thought such would have resulted in disbarment but I quote from 5th Cir:

    The Government provided Defendants with “The Statements of ________” prior to trial but substantially redacted the statements by cutting out large paragraphs and repasting the material. The redacted portions included allegations that ________ had bribed local officials to further his business _______. Defendants were unaware of the redacted bribery allegations until ________ mentioned them in direct examination.

    ***
    Regardless of whether or not the Government anticipated that _________ would testify about bribery, its behavior was wrong. By redacting the statements in a non-obvious manner and failing to reveal material that would arise [*69] at trial, the Government shortened Defendants’ time to prepare an adequate defense.

    The Fifth Circuit also found that the AUSA was guilty of “want of professionalism” [*81] for numerous instances of misconduct during the trial. However they did nothing!!!

    I am still upset about it 5 years later, the 5th Circuit held while this was misconduct it was “harmless error” and not an abuse of discretion to deny a mistrial or continuance, etc. The part about “shortened Defendants’ time to prepare an adequate defense” was laughable. We were approximately 5 weeks into a 7 week trial when it occurred. IT DIDN’T “shorten” anything it prevented any defense which is what the Government wanted and got. THE PROBLEM IS THE COURT HAS SANCTIONED AND ENCOURAGED THIS TYPE CONDUCT BY DOING NOTHING ABOUT IT. AND IT WILL BE DONE AGAIN!!!

  • Ashley McLaughlin

    I have had similar experiences and what drives me nuts is when the most trivial acts of the defendant or defendant’s counsel, by comparison, result in prosecutor outrage accompanied by twin brother hyperbole, which, of course, is faked in such manner as to make the most gifted thespian jealous. The offices of Judges, U.S. Attys, and Probation Officers are just too close for comfort. Subconscious pressure is pressure nonetheless. Would you rather disappoint or potentially infuriate someone you share an office with or an attorney half a world away that you will likely never see or hear from again?

  • PostHoleDigger

    Nothing a good ass-whipping wouldn’t fix.

  • NotZachScruggs

    Footnote 13 appears, to me, to demonstrate how — in spades — that napkin remark is so simply and powerfully irresistible. Smug almost always comes across as, well, smug.

  • Bayrat

    Tim, unless the victim is a sitting US Senator (Ted Stevens) and then only after he looses the election.

Leave a Reply