USA tells Judge Biggers more time needed for response to Zach Scruggs

After pulling a truckload of briefs in the various qui tam cases last week, my desktop was so loaded that I skipped my routine Friday evening check.  One more confession while I’m in this tell-all mood — I actually welcomed the notice of “routine maintenance” that made the PACER system inaccessible most all weekend as I’d begun to feel like the computer version of  of Shel Silverstein’s television-watching Jimmy Jet:

“He watched till his eyes were frozen wide,
And his bottom grew into his chair…
And grew a plug that looked like a tail…”

In my eagerness to avoid Jimmy Jet’s fate, I didn’t catch the latest item on the docket of USA v David Zachery Scruggs before I got out of my chair for the weekend.  Patsy Brumfield, however, somehow got word and posted Prosecutors ask for time in Zach Scruggs’ appeal in today’s”:

“Federal prosecutors in Oxford say they need more direction from Washington before they respond to Zach Scruggs’ motion to vacate his 2008 conviction.”
Hoping the “beach brief”  makes “my butt look smaller”, I raced to the tuned-up PACER and picked up the USA’s Motion for Extension of Time that appears in full below the jump.  Before we go there, let’s examine the USA’s argument that additional time to respond is needed because Zach cited “the United States Supreme Court’s recent Skilling opinion” and:
“… the Department of Justice has promulgated guidelines to federal prosecutors regarding Skilling responses, the undersigned prosecutor has submitted to the Department of Justice an outline of the government’s proposed response, and is awaiting approval…”
Skilling, while opening the door for Zach Scruggs to file his motion, is not the only matter DOJ should consider.  The USA falsely claimed the jurisdiction needed to build a case against Dick Scruggs –  SLABBED explained but it was the 5th Circuit that declared there must be a “nexus between the criminal conduct and the agency,” administering the federal funds:
In order for section 666 to apply, the bribe must be offered or accepted “in connection with any business, transaction, or series of transactions” of the agency receiving federal funds. 18 U.S.C. § 666(a)(1)(B)… we note that at least one federal district court has dismissed an indictment brought under similar circumstances…The district court dismissed the section 666 count of the indictment because it failed to “allege that federal funds were corruptly administered, were in danger of being corruptly administered, or even could have been corruptly administered”…
Despite the government’s argument to the contrary, the 5th Circuit’s Opinion also made it clear that a defendant is not required to raise the issue on appeal:
As a general rule, a party waives any argument that it fails to brief on appeal…However, this court has recognized an exception to this rule whereby we will consider a point of error not raised on appeal when it is necessary “to prevent a miscarriage of justice”…Indeed, the Federal Rules of Criminal Procedure grant us the authority to reverse a conviction on the basis of plain error, even though the defendant has not raised the issue on appeal.
Thus, Judge Biggers not only has the authority to consider Zach Scruggs’ Motion to Vacate and the USA’s eventual response, he also has the authority to consider the whole of the government’s conduct and “reverse a conviction based on plain error” – any “plain error”, including his own denying the Scruggs’ defendant’s Motion to Dismiss based on the USA’s false claims of jurisdiction granted under Section 666.

Aggressive Justice“, an article published in the May 2010 edition of the ABA Journal, quoted “Harvey Silverglate, a criminal defense attorney and author of Three Felonies a Day: How the Feds Target the Innocent:

Silverglate says it is “up to civil society to launch a counteroffensive in order to cure this problem.” He says the press following DOJ cases must look at indictments and prosecutorial conduct with a more critical eye. He adds that federal judges are too lenient with the department…

‘Judges have to see these plea bargains for what they are—corruptions of justice—and judges have to examine these indictments more carefully,” Silverglate says…

The text of the USA’s Motion follows:
Comes now the United States of America, by and through the United States Attorney for the Northern District of Mississippi, and respectfully moves the Court for a thirty-day extension of time, within which to respond to the petitioner’s 28 U.S.C. § 2255 Petition. In support whereof the government would respectfully show unto the Court the following facts, to-wit:
David Zachary Scruggs has filed a 28 U.S.C. § 2255 motion to vacate his plea of guilty, and the Court has ordered the government to respond by October 16, 2010. Because the petitioner attempts to invoke the United States Supreme Court’s recent Skilling opinion and because the Department of Justice has promulgated guidelines to federal prosecutors regarding Skilling responses, the undersigned prosecutor has submitted to the Department of Justice an outline of the government’s proposed response, and is awaiting approval from the Appellate Section, United States Department of Justice. This procedure is deemed necessary if the Department’s responses are to be uniform and consistent nationwide.
Accordingly, it is respectfully requested that the Court authorize a thirty-day extension of time within which to file the government’s response.
Remember “two wrongs don’t make a right” and I’m not claiming the Scruggs defendants did no wrong, only that those wrongs need examining in light of any related law.

16 thoughts on “USA tells Judge Biggers more time needed for response to Zach Scruggs”

  1. Well, “I’ll be dog gone it”! Actually this is good news, because the deeper they look the more likely they will go by the law and not some kind of mob mentality that was obviously going on.

  2. OooooWeeee! Another “I’ll be dog gone it!!!” Now I remember or as we say around here, now I see it! Haha. You saw this coming from almost day one and I remember Sop thinking, naw! Way to go, Nowdy!!

  3. Of course, you were looking at the jurisdictional POV from theA-133 POV, too. (Which was way above my head for me to comment on. :-) As far as in having a chance with Biggers, if Biggers rules based on the law, he shouldn’t have a problem, I don’t think. I hate when the justice system gets politicized, but thank goodness one can appeal unjust carriages of justice.

  4. Oh, also, maybe with a proper response from the government will help Biggers, if they don’t double down on their inadequate miscarriage of justice themselves.

  5. Judge Biggers has been on senior status for a decade, Sop. He’s 75 years old – an attorney for 46 of those years with a legal career that includes two terms as District Attorney and 35 years as a judge, federal since ’84.

    I say all that because I believe he knew the “rodeo circuit” had been active in our state before Dick Scruggs began practicing law, despite the implications of his saying he didn’t believe the attempt to influence Judge Lackey was Scruggs’ first rodeo.

    The me that has known of him and thought highly of him most all of my life wants to believe his questioned decision in USA v Scruggs are attributable to his being used/influenced by people he thought he could trust – including, but not limited to, those investigating Lackey’s claim that he might have been offered a bribe – and that he knows it now.

    He did the right thing when he removed himself from Wilson v Scruggs, the right thing when he dismissed the charges against Clarksdale doctor Roger Weiner and ate the federal prosecutors that set Weiner up for lunch – and, if he’s the man’s man he’s thought to be, he’ll man up and do the right thing in USA v Scruggs, regretting the wrong he can’t undo.

  6. Obviously the USA staff had his ear as he even mentioned in court that he’d been “told” blah, blah, blah – and he did sign, or so I recall, wiretap orders based on what he was told. The access federal prosecutors have to federal judges is the “theme” of the ABA article I quoted and it seems to be under a spotlight now.

    Otherwise, Belle, I think the influence was very subtle — the grapevine has rattled about his “hunting buddies” for example. I won’t name names without documentation but the names I’ve heard a attorneys who had cases against Scruggs and were either hunting buddies of his or a judge he reportedly is close to.

    I think everyone knows that Oxford’s blogging lawyer’s brother clerked for Biggers – and that the current Senior Judge in the District even made public remarks about the clerks putting copies of blog posts on his desks. IMO that accounts for decisions that reflect a lot of the content (and bias) of those posts. Rule 1 for clerks is check your sources – Biggers denial of the Motion to Dismiss for lack of jurisdiction, case in point.

    There has always been distance between the “townies” and the “university” and Scruggs’ office on the square and his close affiliation with the Chancellor and University has some significance. There was so much about Judge Lackey’s conduct that needed to be examined and Biggers gave him a free pass. That’s totally inconsistent with his reputation.

    If what I’ve heard about Biggers is true, he’s done his own investigation over the past three years and little has escaped him. Suffice it to say, he takes names. That said, if I were associated with the government, when he ordered a response to Zach’s motion, I’d have wet my pants and been wearing Depends every day since.

  7. Another case in point is Zach’s motion to exclude testimony of Langston: From Zach’s motion to vacate:

    Although the Government never charged Movant with any crime in the DeLaughter /
    Wilson case, the Government proposed to introduce testimony from Mr. Langston about the Delaughter / Wilson case in Movant

  8. Couple of points, bellesouth:

    Zach’s Motion to Vacate includes pretty powerful documentation repudiating “the Government’s representations” about Zach’s involvement in efforts to influence Judge Delaughter’s decision in Wilson v Scruggs:

    “Now,in sworn statements, former prosecutor (now judge) David Sanders and Mr. Langston have both repudiated the Government

  9. The Comments and the Posts on this subject are “elliptical” in nature, perhaps intentionally so. But they cannot obscure the fact that Zach Scruggs pleaded GUILTY to misprison of a felony in connection with his knowledge of his father’s and Balducci’s payment of a $40,000 BRIBE to Judge Lackey. End of story. Ashton O’Dwyer.

  10. Ashton, not the “end of the story” according to factual information:

    “Zach Scruggs has admitted to misprision of a felony; that is, he failed to alert authorities and the firm

  11. Nowdy: I mean no disrespect, but I, too, read the transcript of his plea agreement. KNOWING about the attempt to bribe Judge Lackey by his Dad, Backstrom and Balducci is the essence of “misprison of a felony”. That does not mean that he has to be PART of the conspiracy, which was hatched and carried out by others. And don’t forget, Zach actually “reworded” a draft Order which was delivered to the Office from Lackey’s Chambers. What the hell did he Zach think “they” were trying to influence Lackey with? Salt Water Taffey? AROD.

  12. Come on, AROD! That is not fair. As a paralegal I have drafted orders for the court and had them re-worded. So, what? That’s what lawyers do! You do not know that Zach knew of any bribery scheme. He pleaded guilty to having a lawyer talk to the judge only pointing out that the case needed to be sent to arbritration in the first place. Get with the program, here. You are not advancing the conversation by telling us something that is at odds with the record.

  13. Ashton read the factual basis to what he plead. There is nothing in the record to indicte he knew of the Lackey bribe. According to the FBI wiretap he left the room before Balducci brought it up.


  14. Thanks, bellesouth, your personal experience drafting Orders for a judge to consider confirms it is common practice.

    In fact, I feel certain I’ve read documents in the Katrina cases that contained a judge’s direction for one and/or both parties to submit an order for the court’s consideration.

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