Insurance Law

(Zach) Scruggs Nation, March 4: Zach Scruggs files motion to dismiss charges for alleged government misconduct before grand jury

By David Rossmiller

Zach Scruggs yesterday filed a motion seeking to dismiss the charges against him (here is a copy).  If this were granted, it would be huge -- with Zach out of the case, much of the government's leverage over Dickie Scruggs would disappear, and chances of a plea agreement with the elder Scruggs would drop significantly. 

As is appropriate when a man is fighting for his liberty, Zach Scruggs pulls no punches.  Here's the brief's lede (it was all one big paragraph in the brief, I've made it into three to make it a little easier to read):

It has been clear since the filing of this indictment that the government has no credible
evidence that Defendant David Zachary (“Zach”) Scruggs knowingly participated in any scheme to bribe a judge. That is precisely why what little evidence the government is attempting to use must be carefully reviewed for accuracy.

Following the hearings conducted by this Court last week, the government provided the defendants with the grand jury testimonies of Timothy Balducci and FBI Special Agent William Delaney. The grand jury testimonies are patently false and misleading in material respects and undoubtedly led to the erroneous indictment of Defendant Zach Scruggs. The testimonies are directly and unmistakably contradicted by the government’s own electronically obtained evidence secured by the government well in advance of the testimonies.

The use of false and perjurious testimony cannot be reasonably explained or justified, and the use of such evidence is an affront to our justice system and a deprivation of the most basic and inalienable rights due each of us, including Defendant Zach Scruggs. Defendant Zach Scruggs therefore respectfully moves this Court to dismiss the indictment against him.

The brief says that the charges are based on three erroneous inferences made by the government about Zach Scruggs' involvement in the alleged bribery scheme:

First, the government claims that Zach Scruggs participated in the initial March 2007 meeting wherein the participants discussed and agreed to Mr. Balducci’s involvement in the Jones v. Scruggs matter pending before Judge Henry Lackey. The government and its witnesses acknowledge that no criminal conduct was discussed or considered during that meeting.

Second, the government alleges that on October 18, 2007, Mr. Balducci delivered an order to the Scruggs Law Firm and 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.

Third, and most important for purposes of this motion, the government claims that Zach Scruggs was present in Defendant Sidney (“Sid”) Backstrom’s office during a November 1, 2007 conversation with Mr. Balducci, who had just been arrested by the FBI and was voluntarily wearing a body wire (at the direction of government lawyers and agents) in an effort to ensnare others.

 I am struck by one thing on page 5 of the brief:

Indeed, the transcript instead indicates that Zach Scruggs, rather than believing the order at issue was being “paid for” by the Scruggs Law Firm or others on their behalf, knew of no such impropriety. For example, Zach Scruggs reviews the order and states, as to a particular part of it, “I don’t know what he’s trying to say. I mean it’s not bad, but I’m not sure what his intent was.” Ex. A at 22 (emphasis added).

To which I say, hang on here -- if Zach was not involved, how do you explain the fact he is reading and editing a draft order, an ex parte communication from Judge Lackey? I mean, how does that happen under the scenario presented in the brief, a scenario where Zach doesn't have a clue.  And remember, the government has the evidence from the Wilson case, the one in which Joey Langston pleaded guilty to trying to influence Judge DeLaughter, of Zach writing in an e-mail that one could write an order on a napkin and get it approved in that case.  

Also, you people in Mississippi tell me, does this passage make sense? 

After some comments by Zach Scruggs and Mr. Balducci about Zach’s reluctance to take the call (id.), there is a pause (p. 30), after which Mr. Balducci appears no longer to be speaking to Zach Scruggs. Balducci’s language changes from the plural “y’all” to the singular “you.” And Zach Scruggs’s voice is never heard on the tape again. 

I talk to quite a few people in Mississippi, and I believe I hear y'all used in the singular sense quite a bit -- "Rossmiller, I've got some information y'all definitely want to know about."  I also have been educated to the usage, "all of y'all," as in, "I told y'all to step out of the car, not all of y'all." But I also hear y'all used in the plural. So y'all tell me, which is it? 

Here are the exhibits to this motion:

Exhibit A -- transcript of the November 1 body-wire recording Balducci made in the Scruggs Law Firm.

Exhibit B -- Balducci grand jury testimony.

Exhibit C -- grand jury testimony of FBI Agent William Delaney.  

Full post as published by Insurance Coverage Law Blog on March 04, 2008 (boomark / email).