Dick Scruggs and the Plea Tree for Scruggs II

Here in Mississippi it’s known as Scruggs II.  Today is the day Dick Scruggs is expected to enter a second guilty plea in Federal Court – this time before Judge Glen Davidson in Aberdeen.scruggs-and-wilson-chart

Those who followed USA v Scruggs closely, however,  know today’s event was carried over after plea agreements cut Scruggs I short.

On November 28, 2007, Scruggs and four others were charged in a six-count Indictment alleging they conspired to corruptly influence a judge.  All initially entered pleas of “not guilty”.  Dick Scruggs was represented by attorney Joey Langston.

Six days later (December 4, 2007), Balducci – the only defendant that communicated with the judge – changed his plea to guilty under a Plea Agreement.  It was later revealed Balducci had cooperated with the government and provided the evidence needed to indict Scruggs, Scruggs, and Backstrom.

The defendant agrees to plead guilty under oath to Count One of the Indictment, which charges conspiracy to commit bribery of an elected state official, and which carries maximum possible penalties of 5 years imprisonment, $250,000 fine, 3 years supervised release, and a mandatory special assessment of $100; all in violation of Title 18, United States Code § 371.

In early January, Langston’s office was searched by the FBI and on the 7th, he entered a Plea Agreement on a Bill of Information implicating his former client Dick Scruggs as well as defendant Steve Patterson in a scheme to corruptly influence Hinds County Judge Bobby Delaughter.

…It was part of the conspiracy for JOSEPH C. LANGSTON and his co-conspirators to attempt to influence state Circuit Court Judge Robert “Bobby” Delaughter by providing a thing of value, that is, favorable consideration of Robert “Bobby” Delaughter for appointment to the federal district court bench in the Southern Judicial District of Mississippi, to obtain rulings in favor ofRichard “Dickie” Scruggs in the lawsuit styled Wilson v. Scruggs pending before Judge Delaughter.

Three days later (January 10, 2008 ) Steve Patterson became the second defendant in USA v Scruggs to change his plea to guilty under a Plea Agreement.

The three remaining defendants prepared for trial – preparations that included addressing the USA”s intent to introduce evidence of a similar crime under Rule 404b based on the evidence (testimony) provided by Langston.  Scruggs responded with a Motion in Limine

On January 7, 2008, former attorney Joseph C. Langston pled guilty to a one-count information charging him with conspiring to attempt in 2006 to corruptly influence First Circuit Court District Judge Bobby DeLaughter in a case then pending before Judge DeLaughter, Wilson
v. Scruggs.

As the Wilson facts are alleged by the government, Richard Scruggs hired the Langston Law Firm to represent Scruggs in the Wilson case, a fee dispute case involving asbestos litigation, which was litigated in various courts for approximately ten years.  At some point well after Langston began representing Scruggs in the Wilson dispute, Langston, according to the government’s proffer, retained and paid attorney Ed Peters to provide advice and consultation on the strategy for the Wilson case.

The government has not alleged that the Defendants in this case had anything to do with Langston’s hiring Peters for the purpose of corruptly influencing Judge DeLaughter or for any other purpose. To the contrary, Special Agent John Quaka’s affidavit supporting the Langston search warrant states that Richard Scruggs expressly instructed Langston to make sure that he did not do anything improper. See Affidavit of John Quaka, Dec. 9, 2007, ¶ 27 (“‘[L]et’s just make sure we keep our skirts clean on this.’”)…

The differences between the extrinsic offense alleged in the Wilson case and the offenses the government must prove in this case are such that no reasonable juror could conclude that the Wilson evidence has a tendency to help prove the element of specific intent required in this case. Among the differences between this indictment and the alleged uncharged extrinsic offense are
(i) the nature of the alleged bribes, (ii) the Defendants alleged to be involved (there is no allegation that Zach Scruggs and Sid Backstrom are involved in the DeLaughter situation), and (iii) the witnesses alleged to be involved: attorneys Joey Langston and Ed Peters, Judge DeLaughter, and members of the United States Senate and their staff who are involved in the recommendation and nomination process for federal judges, have nothing to do with this case.

The USA opposed the Scruggs’ motion and filed a Combined Memorandum and Response.

… the presentation of 404(b) evidence will be brief, the standard of proof is not proof beyond a reasonable doubt, and reasonable notice setting forth the general nature of the evidence is required, not Rule 16 discovery. No continuance is required, and the interests of defendants David Zachary Scruggs and Sidney A. Backstrom can be well protected by a limiting instruction to the jury.

Judge Biggers denied the defendant’s motion – as he did every evidentiary motion submitted on their behalf.  However, I saved notes made by a blogger attending the motions hearing on the 21st of February that indicate Judge Biggers paid particular attention to the arguments on the 404b motion.

…[Attorney Frank Trapp]…argued that Mr. Backstrom is just a regular working lawyer, and if he did not have the good fortune to work for the Scruggs law firm, none of this would have happened. He said that he is not aware of a drop or scintilla of the 404 evidence that would apply to Mr. Backstrom. The judge seemed particularly interested in getting very clear, focused answers on this subject from the prosecution.

Dawson responded again, said these arguments are purely speculative and you don’t grant motions to sever on speculation. The judge asked direct questions about the 404(b) matters and whether there is other evidence or other witnesses that link to these defendants. Dawson didn’t answer directly, saying he is not required to give a witness list now.

Judge Biggers during all this closely questioned Tom Dawson about statements made earlier in Bob Norman’s presentation indicating that the 404(b) matters may not have been a crime. Dawson said it doesn’t matter whether Judge DeLaughter was corruptly influenced, and that it was enough to show bad acts with the intent to corruptly influence him.

Judge Biggers asked questions heading toward the fact that Joey Langston has pled guilty to bribery relating to that-at one point saying that he hoped the government had facts to establish bribery, given that guilty plea. On further questioning about what the government was going to do about that matter, Dawson stated that Judge DeLaughter was before the Public Integrity Division of the Justice Department at this time.

Without ruling, Judge Biggers moved on to the change of venue motion.

Obviously, Biggers moved on with those questions and comments still in mind when he wrote the Order denying the defendant’s motion in limine.

The government properly noticed all defendants of its intention to introduce this evidence; however, the government revealed at the hearing of the present motion on February 21, 2008, that the evidence only implicates defendants Richard Scruggs and Zachary Scruggs and not defendant Sid Backstrom…

Further, the court will give to the jury an instruction limiting the jury’s consideration of the 404(b) evidence to permissible purposes, and the court is of the opinion that reasonable jurors will have no problem understanding – and acting in accordance with the understanding – that the evidence is to be considered only against Richard Scruggs and Zachary Scruggs and only for consideration by the jury in determining the intent issue.

At this point the score is 3 – 3 – three defendants seeking to present evidence in their defense and three with Plea Agreements that required their cooperation with the government.

(a) The defendant agrees to cooperate with the United States Attorney by giving full and truthful statements to such agents as are assigned by the United States Attorney to interview defendant as to all knowledge defendant may have of other persons involved in any way in the offenses charged and all other criminal offenses in any way and to give full and truthful testimony about same before any federal grand juries and trial juries before which defendant is subpoenaed. The defendant understands that a false statement to a federal agent or a failure to testify truthfully would subject him to prosecution for false statements or perjury.

Not only was their cooperation required, it would be rewarded with a recommendation for a reduced sentence.

(b) Provided the defendant’s cooperation rises to the level of substantial assistance, as determined by the United States Attorney, the government agrees to file with the Court a paragraph 5K1.1 motion for downward departure. In that event, both sides understand that the amount of downward departure, if any, would then rest within the sound discretion of the Court.

More importantly, each of the three was given a “free pass” and for Patterson and Balducci, it would be a “get out of jail free” card in the case of Wilson v Scruggs.

OTHER CHARGES. The United States agrees not to charge the defendant with any other offenses arising from or related to the charges in the indictment.

With their evidentiary motions denied and three former associates earning some measure of freedom providing evidence against them, Scruggs, Scruggs and Backstrom eventually ran out of options.  Plea Agreements for Scruggs and Backstrom were filed the 14th of March and Zach’s a week later.

A recent post on the Mississippi Criminal Defense Law Blog, The Critical Descision: Trial or Guilty Plea,  indicates Such agreements now account for what appears to be cattle call justice in North Mississippi.

As for the effect of this practice locally – the Lafayette County Circuit Court has disposed of more than sixty felony cases in the past six working days without a single trial.  Every case has been disposed of by plea.  This can primarily be attributed to the hiring of a new Assistant District Attorney and the announced policy of plead now or go to trial and expect a recommendation of the maximum punishment thereafter.

Law Blogger Kevin Frye continues by agreeing with Scott Greenfield of the blog Simple Justice:

…our system imposes a very hefty penalty on the defendant who seeks to put the government to its proof, with no cognizable purpose other than to dissuade a defendant from doing so.  The sad fact is that many defendant[s], indeed most, will decide against “rolling the dice” by going to trial, even though they may be innocent or have a good defense, because of the enormous cost of losing.  Twenty years in prison may not have much of an impact on the decision to engage in criminal conduct, but it can have an awfully big impact on the decision to take a case to trial.

A careful examination of the plea agreements of the five indicted in USA v Scruggs and that of Langston show that Dick Scruggs alone is subject to charges for any other offenses arising from or related to the charges in the indictment.

Zach’s agreement, however, contains the exclusion.  Today, I suppose, we’ll learn if justice acts justly.  In the meantime we can ponder if the assignment to Judge Davidson indicates Judge Biggers has answered the questions Mr. Dawson would not.

3 thoughts on “Dick Scruggs and the Plea Tree for Scruggs II”

  1. What I find interesting are the remarks of Charlie Merkel and John Jones in the press coverage. There has been a good bit of sabre rattling in the media for months out of the USAs office no doubt designed to pressure DeLaughter to fold up. It appears the feds have the good on Scruggs as they have a money trail. My understanding is that trail ends with Ed Peters.

    Also there has been a ton of blogging on this but I have not been able to find a single explanation of DeLaughter’s contention he ruled in Wilson v Scruggs according to the law. That said I’ve been told by a lawyer close to the case that is not affiliated with either side that Charlie Merkel was out lawyered in Wilson v Scruggs. Also Jack Dunbar of Oxford is the least discussed commonality in all these cases, especially his conduct as “special master” in Eaton which was the popular early case for the one that would compose Scruggs II.

    Should Mr Delaughter hang tough I feel certain his defense will emphasize certain of those items.

    sop

  2. Scruggs trail leads to Langston. It’s Langston’s trail that leads to Scruggs.

    I believe I have what you’re looking for – and a little bit more. Back shortly.

  3. Took longer than I expected and will take even longer to find the document – but I’m “on the trail” so to speak.

    Meantime, I discovered this interesting bit of information (probably one of those “everybody knows but me”)

    While Wilson and Scruggs were working together on asbestos cases, Wilson and Merkel were working together on a separate case.

    It was Scruggs who wasn’t getting paid, and he sued Merkel for contractual interference but lost.

    If you can navigate the Supreme Court website, it’s all there – but that’s easier said than done.

    I think you called it right on the first post we did (Scruggs II or Merkel III)

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