According to the Sun Herald, attorney for Zach Scruggs, Dickie’s son and law partner, have filed a Memorandum in addition to an earlier response to the Pre-sentence Investigation Report submitted on his behalf.
In his bid for probation in a judicial bribery case, attorney Zach Scruggs is trying to distance himself from the crimes of his co-defendants, including his father, lawyer Dickie Scruggs.
A government sentencing report overlooks the fact that Zach Scruggs, a young attorney and father of two, did not plead guilty to participating in the conspiracy to bribe Circuit Court Judge Henry Lackey, his attorneys argue.
The government’s pre-sentence report says he “was in the conspiracy from the beginning and was aware of the efforts to corruptly influence Judge Lackey.”
While Zach’s attorneys point out the claims made in the PRI are contrary to the factual basis of his plea, it was evident Judge Biggers has accepted those claims in the report as fact instead based on remarks he made when issuing the maximum sentence to Dick Scruggs last Friday.
The Court finds that there were five or more people involved. The defendants question whether Zack Scruggs is one of the five. The Court finds that, although he has not been convicted or pled guilty as a conspirator, the statute does not require a conspirator – – five people to be conspirators. The statute requires that at least five be participants in aiding in the crime in some way.
And the Court finds that Zach Scruggs was a participant. He looked at the order, proposed order, made comments on it before it was to be submitted to Judge Lackey; and he was there when this scheme first started. Some people have called that first meeting a scheme to earwig. Some have called it the first part of the conspiracy.
No doubt, as comments in the blogosphere suggested, a chill went down Zach’s spine – a perfectly normal reaction under the circumstances detailed in the Memorandum filed by his attorney’s.
Zach continues to accept responsibility and a related statement is front and center in the text of the 10-page document that carefully goes over the facts that distinguish the crime Zach pleaded guilty to from that of his father and Sid Backstrom.
Nothing that Zach Scruggs describes in this Memorandum (or his incorporated objections) is, in any way, intended to minimize his responsibility for his crime. Rather, it is the defendant’s intent to ensure an accurate understanding of the facts and circumstance of his plea and factual basis and to draw the Court’s attention to factors the defendant believes are particularly significant and relevant to the Court’s analysis and ultimate determination of his sentence.
Although a Judge has discretion in sentencing, it’s difficult to imagine that it extends to imposing a sentence for a crime different from the one charged in the Bill of Information, acknowledged in the Plea, and noted in the transcript of the related hearing – Misprision of a Felony.
Zach Scruggs has admitted to misprision of a felony; that is, he failed to alert authorities and the firm’s registered counsel that Tim Balducci was attempting to personally and improperly influence Judge Lackey through the benefit of his personal relationship with the judge. The defendant acknowledges that he should have reported these actions…
…Zach Scruggs did not, however, participate in a conspiracy to bribe Judge Lackey as originally charged in the indictment. The PSR (May 27, 2008) and Addendum (June 25, 2008) overlook the important differences between the Government’s original charge and Zach Scruggs’s ultimate plea.
While Zach Scruggs has admitted his awareness of Tim Balducci’s efforts to personally influence Judge Lackey, Zach was not involved in any decisions, efforts or agreements to pay money to Judge Lackey. Nor, importantly, is the Government now alleging that he was…
Zach Scruggs’s lack of involvement in the bribery aspect of this case is precisely why the Government submitted the Information which, by the government’s own factual basis, only refers to Honest Services Fraud (18 USC §§ 1343/1346), specifically supported by Zach Scruggs’s knowledge of Tim Balducci’s efforts to use his personal relationship to influence Judge Lackey and not the originally charged bribery or, for that matter, the originally charged Honest Services Fraud. These facts are readily apparent on the face of the filed plea agreement, factual basis and Information…
Further, in anticipation of Probation’s efforts to include information and activity from the to-be-dismissed indictment – specifically the bribery – counsel for Zach Scruggs had a conversation with the Government wherein counsel directly expressed this concern. In response, the Government stated that in the event Probation made such an effort, the Government would not support it. Counsel understands that the Government communicated this fact, in addition to other facts consistent with the Government’s recommendation of probation, to Probation on Friday, June 27, 2008…
We now, respectfully, request the Court accept the Government’s recommendation regarding Zach Scruggs and sentence him to a term of probation.
Lastly, in the event that the Court, after having reviewed the facts, circumstances and arguments surrounding this plea and the Government’s recommendation, is not inclined to accept the recommendation, Zach Scruggs asks for the opportunity to discuss the matter in a pre-sentencing conference with the Court and the Government.
Text from the Memorandum was added in the Update.