The motion Zach Scruggs’s lawyers filed today once again (like the motion to sever) makes the case against Zach Scruggs sound really thin. It does not a whit to help either Sid Backstrom or Dickie Scruggs, although the dynamics of the pressure on Dickie Scruggs from this case should surely change a lot if Zach is out of jeopardy. However, I would be pretty surprised if this motion succeeds. I have only read it carefully — I’ve not read the cases themselves — and think that the evidence of “perjury” and “lying” by Tim Balducci is simply not that strong.
There are three pieces of evidence against Zach, according to the new motion:
- The March meeting, where everyone acknowledges “no criminal conduct was discussed or considered…”
- The October 18, 2007 delivery by Balducci of an order to the Scruggs firm, and Balducci “picked up a package left for him by a third party when Zach Scruggs happened to be working there after hours, again with no criminal conduct discussed.”
- The November 1 meeting.
The characterization of the March meeting is accurate. Everyone seems in agreement that improper but no criminal conduct was proposed there.
The October 18th event was more thoroughly described in Zach Scruggs’s motion to sever. Here’s how I summarized it:
Second, the motion says the government claims Balducci delivered an order to Lackey on October 18, 2007. Zach Scruggs was in the office working late on a brief and by that "fortuity " was the one there to receive the order. The motion states that the government alleges that Zach directed Balducci to a packet with retainer information for an unrelated case which the government says was a cover for his alleged bribe. This (the motion does not mention) was how Balducci was paid back the $40,000 used to attempt to bribe Judge Lackey. The brief states that it is important that someone other than Zach prepared the packet, and he had no knowledge of the packet’s contents or the payment. "Zach Scruggs simply had the misfortune of being there when Tim Balducci arrived at the Scruggs Law Firm after business hours to deliver the Order. "
So, by this point Zach had: (1) Been involved in a meeting where an improper ex parte contact (but not a bribe) was planned; and (2) Been at the office when Balducci arrived, and directed him to pick up a packet at Dickie Scruggs’s desk (containing the check for $40,000 and documentation making it seem to be legitimate legal work) and leave the papers he brought in the packet’s place. There is no evidence Zach knew what that was about.
That brings us to the November 1st meeting. Comparing the grand jury testimony to the November 1st transcript, the motion states, “it is plain that both Mr. Balducci’s and Agent Delaney’s characterizations of this meeting — in particular regard to Zach Scruggs’s participation, or rather his failure to participate — are patently false and deliberately misleading in material respects.” This hyperbole is a mistake, because later the motion essentially takes back the accusation against Delaney, while continuing to call Balducci a liar.
What happens in the November 1st transcript is a very long conversation with Backstrom, Zach Scruggs, and Balducci about the order. It is absolutely clear from the context that they are talking about an order about which Balducci is using ex parte contacts with the judge to work out the drafting. This of course would raise giant red flags to any lawyer operating within miles of ethical behavior. Zach mixes into this some very unendearing sanctimony about Grady Tollison. They are “only” talking about improperly contacting the judge to work out the order with no mention at this point of why in the heck the judge might do that. Balducci explains that things had to change because of new filings by Grady Tollison on the other side. Then this exchange occurs:
Balducci: Um, the other piece of the puzzle I hadn’t told you yet is, uh, get it how you want it because I’ve got to, uh, I’ve gotta go back for another delivery of, uh, another bushel of sweet potatoes down there. So. Because of all of this that has come up.
Backstrom: mm-hmm.
Balducci: So get it right. Get it how you want it cause we’re payin’ for it to get it done right.
Backstrom then starts reading the order during which “door opens – Zach leaving.” [at page 30]
Balducci’s grand jury testimony is the main basis for the motion. The pivot of the motion is in the grand jury, Balducci said “10,000,” as opposed to saying “bushel of sweet potatoes” or even “bushel of sweet potatoes which meant $10,000.” The question is whether that swap is enough of a misstatement to amount to misconduct.
In the grand jury, Balducci stated: “And the judge was still inclined to do it but that the judge wanted an additional $10,000 to do it because he felt a little exposed on the facts now because of this recent filing by Mr. Jones’ attorneys.”
Q. How did Zach Scruggs and Sid Backstrom react?
A. It was not a problem.
He then testified to talking to them about the content of the order. As someone pointed out in comments, this sort of argument is what jury trials are about, not pretrial motions to dismiss.
The main gripe the motion has with the agent’s testimony is in this part: The agent testified, “Tim ended up telling them at the end, look, is this how you want the order to read? You guys are paying for it, so you might as well get it the way you like it. And they both agreed it was fine as it is.” The problem with this testimony is that Zach heard the “you guys are paying for it” but left the room before Backstrom said it was fine. I do not think that difference amounts to government misconduct.
A secondary gripe is that the agent, in the middle of telling about the November 1st meeting with Backtrom and Zach, talks about the fact that Balducci had been to Lackey that day with the last $10,000. Once again, I don’t see how that is misleading.
The problem with Zach’s argument is that, within the entire context of the case to be presented by the prosecution, it appears that he had knowledge of the improper conduct and made no statements of protest. He knew at the beginning about the proposed improper contact. He then knew that an order was the result of the improper contact. He directed Balducci to a packet for him (which contained money), in exchange for the order — I know he CLAIMS he did not know what was in the packet, but a jury would be allowed to make different inferences from that circumstantial evidence. And finally, during the Nov. 1 meeting, after Balducci talked about the order and an obvious improper inducement (regardless of the lack of clarity of the specific amount), Zach says not one word in protest. While he may claim he did not hear Balducci, a jury will be allowed to consider otherwise as Balducci will testify that Zach was present in the room at the time and he was talking loud enough for all to hear.
And when you combine all of this with the evidence that will come in re the “other instances” (Eaton case where Delaughter was allegedly bribed) used to prove a pattern of illegal conduct, Zach could be nailed with his infamous napkin comment. I think a jury could consider that and determine that Zach was unresponsive to Balducci in the Lackey case because what Balducci was saying was just business as usual.
This case will not be tried in a vacuum. And the jury will be allowed to make logical inferences from all of the testimony and other proof. And in that overall context, there is a very good chance, IMO, that a jury will find him guilty of conspiracy to commit judical bribery. He does not have to be as guilty as Dickie to be found guilty of conspiracy.
Page 19 of 11/1
SB – The only thing that’s a little bit curious to me (Zach enters) is it says, complainant never requested relief by this court (closes door)
TB – ZACH, let me bring you up to speed
SB- but chose to disregard this and that doesn’t make sense
TB – Alright, this on the Judge Lackey Deal OK? You know, came by here last week and gave you an order that the judge was gonna enter. Well apparently before Monette got it entered, got it sent down here, Grady filed a bunch a more shit in the case, ok? And so the judge called me and wanted me to come back down there and he’s redone a new order. And what it is, it’s just a change, eveything’s still ok, still the same deal…
Zach – Mm-hmm
TB- …but he, he, he wanted me to approve this new language, basically saying that he’s reviewed the new filings that Grady has done, considered those and he still…
It is my understanding of nature of conspiracy that an act in furtherance of a conspiracy is sufficient for conviction as a conspirator even if the act is not criminal in and of itself but serves the purpose of and helps to advance the purpose of the conspiracy.
Am I right about this?
That’s my memory of how it goes, confounded.
Yes. For example, Bill, Joe and Frank could get together and talk about robbing a bank. Bill could state that they have a getaway car, but it is out of gas. Joe can go fill the car up with gas for them and that would be a predicate act in furtherance of the conspiracy. Even if he did not go to the bank with them, (as long as he did not affirmatively withdraw from the conpiracy before the criminal act planned by the conspiracy is committed) Joe is still guilty of conspiracy to rob the bank with Bill who goes in, and Frank who drives the getaway car. And, that’t the whole point of conspiracy, to punish the people who don’t commit the crime, but without whose help and support, the crime couldn’t have been successfully accomplished. If he had gone to the bank and helped rob it, he would be guilty of the act itself (as well as conspiracy).
Or in the instant case, it doesn’t matter that Zach didn’t actually go and pay Judge Lackey, or provide the money for it, as long as he talked about doing it with the others, and committed one act, criminal or non-criminal, in furtherance of the goal of the conspiracy.
I wouldn’t be surprised if this is the first conspiracy case Zach has ever been involved in, as the Scruggs firm wasn’t a criminal defense firm (if they have ever represented a criminal defendant, I am unaware of it being reported).
And, nothing they did in any of these schemes suggests a good working knowledge of conspiracy (or wiretap) law.
No good working knowledge of contract law either, observer. But none of that seemed to hobble them as long as they had a good working knowledge of P.L. Blake and Ed Peters, doncha know.
okay observer, here’s another question for you: if the $40K was paid by the Scruggs Law Firm and DS, ZS and SB are all shareholders (i don’t know if they are or not); then are they all considered to have paid the money to Lackey?
Yes, if they had knowledge that it had been done. It wouldn’t be a requirement for them to be a member of the conspiracy, but I see your point as to considering it an overt act in and of itself if they acquiesed to it being done (and, it’s kind of hard to picture a scenario where they didn’t know, considering the evidence we have heard) .
Well, I carry no water for anyone named “Scruggs,” but let me toss this one out:
Why did Balducci say “sweet potatoes” at all?
It’s not only clumsy — it’s utterly unnecessary. It’s a meeting, not a phone call. Patterson and Scruggs presumably have no clue they’re being taped. I confess to not having the timeline clear as to whether Balducci had been confronted & flipped by this point, but no matter.
Now, if everyone in the meeting knows what’s up, why use code at all?
If I’m Zach’s lawyer, I’m going to argue that “sweet potatoes” was code to hide the bribe from Zach. Really dumb code, but as we’ve seen, “dumb” describes a lot of what these lawyers were up to.
(If Balducci was flipped, then he would seem to have no motive to use code, b/c he wants to incriminate the other two. Still, he did use code. Which would imply, if I’m Zach’s lawyer, that Patterson knew that Zach wasn’t supposed to know about the bribe, so that Balducci had to talk around it.)
Interesting theory, Anderson, but against the backdrop of the rest of the evidence, one that might make jurors laugh. I bet once Zach’s “paper napkin” sneer comes in, he’s had it.
Well, I didn’t say it was a *good* argument … just the kind of argument Zach’s gotta float with the jury.
I got back from a NITA trial seminar recently, and it was soooo fascinating watching the jurors deliberate on live video. You never know what a jury will get hung up on, so you’ve gotta just throw everything you can at ‘em.
I think Anderson has a question that both sides will need some form answer. Reading the trancript and the way Zach floats in an out of the discussion, I have the impression that Zach places himself above the nuts-and-bolts stuff Backstrom is doing with Balducci. Does that mean protecting him from the gory illegal details? I don’t know. But something made Balducci instinctively soft-pedal what he was doing with Zach in a way he would not with Dickie. This requires some explaining.
I’m going to do a free-standing post about this. There is a lot of evidence of outright impropriety that Zach knew about (the stuff at the March meeting, the discussion of the order in the November meeting). Just how much knowledge of the actual end of a conspiracy must a co-conspirator have? The coconspirator must know it has an illegal. How little of the means / ends can a coconspirator know and still be a criminal participant?
Looking forward to that post and discussion, NMC. Go get ‘em.
As I posted on another thread, code words are frequently used by other criminals in an attempt to obtain some wiggle room if overheard, or charged, by law enforcement. It seldom works, mainly because once the context of the conversation comes out in testimony during the trial, it is clear to everyone what was being discussed.
I was always amazed that there were drug dealers who really thought that such flimsy deceptions would work.
I doubt that even the secretaries that overheard this had any doubt as to what they were all talking about.
And, for Balducci to quit using them, after becoming an informant, would be a red flag. Ask any narcotics agent why they don’t tell their snitches to start using the actual words like “cocaine” when they send them in undercover after being flipped. Because, it’s not what they were doing before.
I realize that “guessing” is not worth squat in a court room, I really believe that Zach had been involved in so many shady deals with his father, that he grew up knowing how to protect himself by “not hearing” or “not being in the room”, etc. when anything that would have compromised him arose.
And, for Balducci to quit using them, after becoming an informant, would be a red flag.
Excellent point. Though I think drug dealers are savvier than these boys.
It seems not really difficult to be a corrupt attorney in a place like Mississippi, where everyone’s pretty laid back and simply trusts the other side not to be a crook. Someone who *is* willing to be a crook can rack up some easy wins and think it’s because he’s so darned clever.
Why say “sweet potatoes?” Well, it is cinematic — and ALL of these guys felt like they were living like stars on the big screen. Sort of “Sopranic” as in Tony-like. I’m sure these guys were watching the Sopranos and thinking …. COOL!
Well the reality of it is that the law bites and bites hard. When I think of little Timmy in the pen … I feel really sorry for the guy.
Did Balducci use "sweet potatoes " more than once?
It didn’t come off to me it was a decided upon code, but a more comfortable (and colorful) way to tapdance around the indignity in one instance.
Last night I quoted part of the wiretap transcript where Zach enters the room and shuts the door. Balducci address Zach directly and tells him “let me bring YOU up to speed” Balducci tells Zach what’s happening with the Lakey “DEAL”. Zach isn’t confused (What deal?) and does not protest (What are you doing talking to a judge on one of our cases?).
I don’t think it matters if the “deal” with a judge was a bushel of sweet potatoes, an all expense paid trip to Disneyland or a handshake.
Well put, Seacrest: “…a more comfortable (and colorful) way to tapdance around the indignity” of the thing.
You just know that somewhere, at some level, these guys had to feel deeply ashamed at what they were doing.
Y’all who are recent-ish arrivals, you wanna try “Redneck Sopranos” on Ms. Search Box to see the fun we got into, starting from “sweet potatoes,” one Sunday afternoon a while back. Might want to wait until your tum’s nice and full, though.
I just keep reading all of these postings without comment, but it seems that I remember reading that Zach was the one who suggested that Balducci approach Judge Lackey, noting that they were already friends. I think I read that in some transcript that I got from insurancecoverage blog.
Welcome, a Lurker (no more). Yep, you remember correctly. Maybe NMC or somebody else can remember which transcript that is — I just looked for it briefly but haven’t spotted it yet.
lotus, Would bet Keker has a whole crew monitoring FOLO around the clock. Scruggs could have saved himself a lot of sweet potatoes if he’d just known about FOLO before he hired The West Coast Wonder, Don’ta jes know it. These posters don’t skip a beat , they remember things that I had forgotten and I have read every word since finding my way here last October.