Zach Scruggs has filed a very aggressive and pointed reply to the government’s response to his effort to undo his guilty plea. It includes as exhibits a substantial part of the email thread in which Zach Scruggs made the “brief on a napkin” remark, to demonstrate that what Zach was saying was that with Judge DeLaughter, they were going to get understanding and not hostility or hatred to Dick Scruggs. It also includes as an exhibit the email that sent to Balducci a transcript of a voir dire as a part of the cover for paying him $40,000; the point of that exhibit is to show that the email that was predicate to a wire fraud charge was within the state of Mississippi.
I can’t post further about this response at the moment due to an emergency. More later.
Here’s: Zach’s Reply reply to the Government response and here’s Exhibit A and here’s Exhibit b.
How does one determine that Zach’s e-mail was “intrastate” under the wire-fraud statute? Do we go by the sender and receiver’s locations, or do we trace what servers it went through?
If I mail something to NMC, is it “intrastate” and thus exempt from the mail-fraud statute?
The Government concedes that when Balducci initially visited Judge Lackey about the case, and then later mentioned an of-counsel position with his firm, Balducci “did not consider the offer a quid pro quo,” and thus did not intend a bribe.
Why on earth would the feds concede that?
The Government concedes that when Balducci initially visited Judge Lackey about the case, and then later mentioned an of-counsel position with his firm, Balducci “did not consider the offer a quid pro quo,” and thus did not intend a bribe.
I share Anderson’s curiosity over this point. If Balducci’s overtures to Lackey were not a bribe when he first set these wheels of events rolling, when did they become a bribe? It was only after 6 months or so of Lackey’s repeated entreaties to Balducci and Lackey’s picking $40,000 as the magic number that the deal was made. Lackey appears more as the Bribor and Balducci as the Bribee.
I still surmise: at the time Balducci first went to Lackey, the federales had a full-court press on public corruption. The DoJ had a special investigation and prosecution team in Memphis that was working a number of cases. Just my belief: all they really wanted was to bring down then-Mayor Willie Harenton; a lot of other small fish and fry were caught up in what proved to be DoJ’s overplaying its hands, and DoJ had to abandon some of its hurried-up prosecutions.
My point is: DoJ had signals in the air that its tentacles were probing into lotsa people, both public and private, in lotsa places in Western Tennessee, Northern Arkansas, and Northern Mississippi. DoJ was looking for that magic card that, when pulled, caused a lot more cards to collapse. It never happened.
Balducci’s first contact with Lackey appeared to me, and still appears, quite casual: Balducci had already signed up a couple of other retired judges–Chancellor Gillespie and another whose name escapes me–to appear Of Counsel on his letterhead. Like so many of you, I received Balducci’s printed announcements of his Of Counsel signees. So I don’t think Lackey would have been surprised when Balducci made an Of Counsel overture to him nor do I think he would have objected to so proceeding after retiring.
However, somewhere along the line Lackey sighted Do’s signals in the air. Perhaps he thought Balducci was chumming for DoJ–that the Of Counsel conversation was really a set up of him: Lackey. So Lackey makes a beeline to the Oxford USA’s office to see if he could wash himself in their waters of purification.
And at that point, the clapboard snapped shut and thus began l’affaire Scruggs.
So I don’t think Lackey would have been surprised when Balducci made an Of Counsel overture to him
Perhaps I’m naive; I would not in 1,000,000 years make *any* such offer to a judge before whom I had a case pending.
Ben, I thought maybe I was way off base but when I first heard how the Balducci/Lackey affair really went down, I thought the same thing. I thought that Judge Lackey might be trying to make sure he wasn’t being targeted. I don’t know about that now, but it was my first theory.
I thought the Of Counsel offer was casual and relatively innocent. In fact, if it was widely known that Balducci and Patterson were throwing those around, Judge Lackey might have been offended had the offer not been extended.
I’m not saying that there wasn’t ultimately a crime but I think that if you took Dickie Scruggs name out of the equation, there would have been no investigation. I feel pretty certain of that.
The Zach reply brief seems pretty strong to me.
I don’t believe for a second that Judge Lackey went to the DOJ because he had some ax to grind with Dicky and certainly not with Balducci, but at that point, I’m sure he had to consider if he was being set up himself. It reminds me of a poker saying. If you’re at a table for a while and you can’t figure out who the fish is, guess what? You’re the fish.
Anderson:
So I don’t think Lackey would have been surprised when Balducci made an Of Counsel overture to him.
Perhaps I’m naive; I would not in 1,000,000 years make *any* such offer to a judge before whom I had a case pending.
~~~~~~~~~~~~~~~~
Nor would I, Anderson. But there has always been an air of casualness and closeness between certain lawyers and certain judges … not just in North Mississippi, but throughout the state. I suppose that’s just the way Mississippi does law.
The government concession about the of-counsel offer is just them being straight about Balducci’s testimony– he said on the witness stand that it did not enter his mind that it would be seen that way and that the folks i’n the Scruggs firm did not know aboot it.
Judge Lackey was taken aback by the whole approach and offer; the Government only learned what Balducci had i’n his head after he turned.
I have to say reading the entire email certainly puts a different light on the “napkin” comment that I always was very offended by before. Now having read the entire email exchange not nearly as ominous as its appeared to me. I am ashamed at myself for having fallen on the sword of “jumping to conclusion” before knowing the full story in that respect. Shows that even we, lawyers, are subject to the same frailties of being human and assuming the worst when open eyes might make you take a second look. I must profess the “napkin” comment always made me wince but no more seems innocent in context now. Still need convincing on the “rest of story”.
The napkin comment does not sound as bad in the entire email. I have a recollection of Johnny Jones saying more about it, though, in a way that did not accept the innocent interpretation of it.
Adding it as an exhibit was a smart move.
Johnny Jones learned a lot about Dicky the hard way. Being one of Dicky’s lawyers on the Wilson case over a fee dispute and then finding himself in essentially the same position; it must have been quite an education. My understanding is he sees things a little differently now as opposed to a few years ago. Never doubt Foonberg, get your money up front.
NMC @ 6:45: Judge Lackey was taken aback by the whole approach and offer . . . .”
You know Lackey much better than I, but I don’t believe he was taken aback one whit. If anything, I think he expected Balducci’s Of Counsel “assurances.” Look at the other judges and officers who signed on before Lackey … he didn’t want to be excluded.
Having read all the pleadings and attachments now, it appears to me that there is a chance here for Zach. Not to excuse anything that was done by any of them but there are some sound legal arguments that at least I believe will cause the Judge “pause” or legitimate concern which gives a chance for relief.
Ben, IIRC, Judge Lackey said he was taken aback by the implication that he might have seemed like the kind of person who would be receptive to such bribery — asking himself what he could have done to draw such an offer.
When I first read about it, I was reminded of the pass a gay fellow made at me when I was 19, which when I finally figured out that’s what it was, I was all “yikes, am I doing something to *look* gay?” etc. Pretty funny in retrospect. Of course, susceptibility to bribery carries a moral taint, but you know what I mean.
surely this comment is in jest:
“There is a report out there that P.L. Blake paid John Bond 80K to go to State.”
http://blogs.clarionledger.com/msu/2010/11/09/report-bond-contacted-by-fbi/
Johnny Jones HAS to say he thought that the e mail from Zach was perfectly innocent. Otherwise, he would have to admit knowledge of the whole scheme to get the “snakes” into the Hinds County case. If Jones admitted that he knew what Zach was talking about in the e mail, that would be tantamount to admitting he knew of the scheme. Therefore, Jones will alway deny that he knew what Zach was talking about — even though he warns Zach not to get in on the Langston scheme — which he believes will one day be exposed. Any conclusions based on the statements of Jones are based on quicksand.
O.K., dumb question. Is the Supreme Court’s Skilling decision retroactive? If not, doesn’t lay Zach’s case to rest? It was a crime when he pleaded to it. He didn’t preserve the argument on appeal. He’s stuck, just like all the other folks convicted under honest services charges.
Never trust a head-wounded vet’s memory, but I thought I recalled a Third Circuit case that ruled that Skilling was retroactive. But now I can’t find it. Will one of you out there with WestLaw follow up on this, please. It shouldn’t be hard to get a circuit split quickly on this issue.
Tom,
The Scruggs legacy is pretty sad. While I can appreciate a bunch of attorneys wallowing in the demise of the most successful attorney in their club, those close to the family; your posts about Oxford are far better than the attorney-laden discussion of the Scruggs excuse-intricacies and the criticism of obvious youthful greed.
It is funny to me to watch the legal society of Mississippi and the criticisms it espouses. Then I look to how this professional group presents itself to the world around it. I arrive at a conclusion. It is a society that is quick to criticize, but even quicker to avoid any accountability.
While I love winning an argument, the reality of what happened here is sad. While education highlights more truth (oh, did I mention property in FL); it also allows for foolish diatribe.
In the end, legal experts wrote the rules, right? I guess everyone can guess if influence in this situation was correct or incorrect. In the end, a bribe is a bribe. Color it anyway you want. It is wrong.
Ben, your head is fine:
FN9. Skilling was decided after this appeal was argued and was not available to the District Court, but we are bound by it. See United States v. Asher, 854 F.2d 1483, 1487 (3d Cir.1988); see also Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”).
That’s U.S. v. Riley, 621 F.3d 312 (3d Cir. 2010).
… Now, I don’t do crim law, so I dunno whether a case is “final” after a guilty plea, tho I would kinda think so.
The case is final after a guilty plea. This is a collateral attack, and so that doesn’t answer the question.
Doesn’t answer the question … whether Skilling applies?
The Teague case explains what constitutional changes are retroactive. It can be complicated in application, but generally it means that criminal procedure rules are not retroactive, but a finding that a law is substantively unconstitutional is retroactive. The theory is that a person convicted of a substantive law later determined to be unconstitutional was never actually convicted because the crime does not exist.
Right.
I’ve just spent the lunch hour re-reading, first, Zach’s original memorandum, then the Government response, and I’m half way through Zach’s reply. I also re-read the November 1 transcript.
I really think this all may come down to whether Zach is “actually innocent” in the sense of knowledge about a bribery scheme, which will call for a review of that November 1st transcript and possibly testimony from Balducci and Backstrom about when exactly Zach left the room.
This highlights the point of bringing up the polygraph: Apparently what Sid’s “misleading” response was about was whether Zach heard about Lackey wanting more.
Okay. So everyone convicted of, say, sodomy was actually not convicted, and all those can be expunged?
Oof.
Still looks like trying to get a second bite of the apple to me. I still buy the government’s argument that he would have to prove actual innocence of everything he was charged with, not just what he plead to. This reminds me of golfers that want a mulligan on every hole. I’m awful at golf, but I can accept that fact and enjoy myself regardless of my score.
As many years as Judge Lackey had known and dealt with Tim I have always wondered why, even if he thought he was being set up for some reason, he didn’t confront Tim about any impropriety he perceived from the initial conversations. The train left the tracks in a hurry, and a decision could have been made to address any act deemed inappropriate before it escalated further.
I agree, Jefferson. I can’t get past how Balducci thought it was ok to talk as he did with the Judge in the first place unless it was not unusual and even more so, why the Judge, given their relationship, handled it the way he did.
I am thinking that either Judge Lackey got suspicious only after the conversation and then was trying to cover himself and/or he was caught up in, or maybe got caught up in after contacting the U.S. Attorney’s office, the Scruggs envy that I think was the primary force behind this. I feel certain that had Dickie Scruggs not been related to this incident, nothing significant would have come out of it.
My one sentence synopsis of the whole Scruggs affair: Dickie Scruggs got real rich and moved to Oxford, MS and upset the dynamics of the North Mississippi Legal Establishment and they didn’t like it.
FP & J – You are beginning to sound like Rovian spin masters. Unfortunately for you, Dickie’s problems began all over the State. What goes around, comes around. His birds came home to roost. Do unto others as you would have them do unto you, and so on so on so forth.
Jefferson:
I have had the sense that Judge Lackey had a “WTF?” reaction and that it bothered him for some time afterward. At some point, I’m going to directly ask him why he didn’t directly confront Balducci then and there. My next observation is an assumption, not based on something directly said by him: That Judge Lackey thought he had to do something about the contact, and it was bothering him. At minimum, he was going to have to report Balducci to the bar, but this seemed more serious than that.
Floyd Pink:
What evidence do you know that Judge Lackey was motivated by “Scruggs envy”? Curtis Wilkie’s book more or less asserts that, but its only basis is Judge Lackey’s testimony in the circuit court hearing in Jones, which in no way supports such an assertion. Judge Lackey hardly knew Scruggs and knew little about him when Balducci approached him.
Do you think the way Scruggs operated in Wilson the ordinary way things are supported to operate? Or sending Balducci on his errand? Somehow, you almost imply that Judge Lackey had a role in creating that contact, when there is no question that either Patterson or Zach Scruggs came up with it, and the whole group in Scruggs’s office thought it a great thing to do. And there is no question that Judge Lackey’s reaction was to seek counsel from a fellow judge (Howorth) and then prosecutor’s Lon Stallings and John Hailman.
Delta – I agree, but I was only referring to Judge Lackey and Balducci. Its always seemed to me that Tim wanted to sit at the table with the big boys, struggling hard early on in his practice and being ambitious perhaps to a fault. I have not scrutinized the tapes and don’t plan to, but maybe someone can tell me whether Tim was trying too hard to impress Judge Lackey, who had been a mentor to him, and got in over his head so fast that he lost himself. Not to sound trivial, but he seems like Icarus flying too close to the sun. Maybe the tapes can’t show where his intent and heart lie during that first meeting, but that is the moment that intrigues me. That and why he didn’t, or couldn’t, find it within himself to put on the brakes. Somewhere inside, he knew better.
Tim was trying to hard to impress everyone, Jefferson, and what’s odd about the way he does it is the way he adopts different ways of speaking depending on who he is speaking to.
NMC – Not to defend Tim B. here but to explain the tactic, “he adopts different ways of speaking depending on who he is speaking to” is exactly how a good salesman makes excellent sales numbers.
My understanding very early on was that Judge Lackey thought that someone was trying to set him up by using Balducci. I understood that Judge Lackey went first to a friend and asked why would they (I assume he meant the government) come after him and only after discussing what had happened did all the pieces start falling into place.
NMC – I don’t know if Judge Lackey was motivated by Scruggs envy initially or if after he had the meeting with Balducci, he was influenced by those who were. Scruggs Envy either way.
No, I don’t think the way Scruggs operated in Wilson is the way things are supposed to operate. I sure don’t. Wilson was way worse than Jones, at least out of the gate, in my opinion. But do I think people get appointed to Federal Judgeships by influential calls on their behalf to Congressman by powerful others? Yes. Do I think Scruggs stepped into a culture in Mississippi in which this is the way things were being done before he was born, while he grew up, and still to some degree today? Yes. Do I think that sometimes these calls are made improperly in all sorts of contexts, including judicial? Yes.
I do think what Balducci intially did with Judge Lackey was probaby out of the ordinary but not excessively. Not in Mississippi, and that is why Balducci felt comfortable doing it. Do I think Judge Lackey in his virginal innocence was so shocked he was rendered speechless? Not no, but Hell No. I have no direct evidence but I am over 10 years old and not developmentally disabled.
Unless Judge Lackey was delivered to the courthouse out of a vaccuum every morning and then put back into the vacuum when he left, Judge Lackey knew plenty about Dickie Scruggs. The idea that because Judge Lackey had not met Dick Scruggs, he didn’t have an opinion of him is one of the most foolish ideas floated around now. Give me a break. He was a Mississippi lawyer and judge. He was very aware of Dick Scruggs and he had an opinion about him. Regardless, he could still have been influenced by the Prosecutors when he went to them.
I didn’t imply, almost or otherwise, that Judge Lackey had something to with creating the intial contact.
90% of my opinions on this matter were formed before reading Zeus but Zeus did influence me by affirming some of what I previously thought. I knew nothing about the drug addiction aspect and several other things along that line.
I got the impression from this site that Paul Minor’s investigation was the result of a Bush appointed Republican witch hunt. I was looking into “honest services fraud” cases at the time and when I read the facts of the Minor case I was shocked by his overwhelming guilt. Then I realized that his facts were way worse than the Scruggs facts yet Minor was practically a folk hero here while Scruggs was the devil incarnate. I do appreciate the fact that you keep posting information on this site regarding the Scruggs matter but I make up my own mind on what I read and hear. Much of what I write is justmy opinion and much of it is I arrive at intuitively.
scandal junkie, Whendall Blount and Henry Lackey were involved in a business venture Medical Concepts. (May 20, 1991-June 3, 2008) 8 weeks before Dixie Scruggs started to serve his sentence. Medical Concept Inc. was owned by Lackey and (morphine) Blount. Patsy broke this story a while back. I’m sure it’s purely coincidental.
Maybe thats why he thought they were after the “country bumpkin.”
Look at these names on the bankruptcy docket scandal junkie
Some of them are in Wilkie’s Book. Someone needs to call Jesse Ventura.
Tollison
Steve Livingston
Neal Biggers
http://slabbed.files.wordpress.com/2010/06/blount-bk-case-docket.pdf
Lackey, I’m sure was worried they would set him up.
There are a lot of crosscurrents as Wilkie puts it.
I just know that Dick Scruggs should have been brought down a long time ago. He harmed many others in the legal community with his greed. He harmed Ms with the Tobacco lawsuits and Asbestos lawsuits. I remember them tearing all that stuff out of our school library.
There’s no scandal. It’s about time they started sending these rich aholes to jail. What do you think about that Scandal Junkie.
Ok, FreeWM3, let’s read that docket:
Steve Livingston was the bankruptcy trustee in the Blount bankruptcy. And you’re suggesting what is improper about his name coming up there?
Tollison’s law firm represented a bank involved in lending relating to Blount’s bankruptcy.
And Neal Biggers? He was the district judge to whom any appeal went in that bankruptcy.
My law firm was involved, too: Wendell Blount screwed us out of a legal fee, and we got a judgment that what he owed us was nondischargable in bankruptcy. There was a whole world of lawyers involved in that mess– someone who’s now a partner at Daniel, Coker, for instance (the firm that represented SKG in the Jones case). Judge Lackey had represented Wendell Blount before he took judicial office.
All that Patsy Brumfield reported about Blount and Medical Concepts was that Judge Lackey (prior to him being on the bench) filed its incorporation papers and was its agent for process. The article doesn’t say Judge Lackey “owned” Medical Concepts (and in fact, he didn’t) with Blount.
So what exactly are you insinuating?
Thanks for the post. Enjoyed reading all comments. Very interesting case. Biggers is a fine judge but he is too into this case. He should step aside and let someone else hash through this and make a decision.
As an outsider (not a lawyer, no longer a resident of Ms.), it appears that the conviction of young Zach by Biggers was just additional punishment for his father. A poke in Dick’s eye by Biggers, if you will.
I am a 6th generation Mississipian and left years ago because of the “in your face corruption” in the state. In Jackson county the plaque dedicating the courthouse names the county officials in office at the time, 60% have been convicted or pled “no contest” to corruption in office. None served any time.
I’ve never understood that napkin stuff. Was it a “brief” on a napkin or an “order” on a napkin. Why would a Judge be signing a brief? What does it mean? What was Zach saying?