No surprise, little substance – not much thinking evident in Government’s cognitive map – USA opposes Zach Scruggs’ Motion

Hardly the “breaking news” it was several days ago – and even then not a surprise:

“The government respectfully differs” with Scruggs’ view that he was forced to plead guilty to a crime he didn’t commit and that his former counsel was secretly working with the government for another client…”

Although SLABBED was otherwise engaged when Patsy Brumfield broke the story of the Government’s Response in Opposition to Zach Scruggs’ Motion to Vacate, “Unbelievable” was the reaction on bellesouth’s blog and even the blogging lawyer of north Mississippi was taken aback by the government’s mention of polygraph tests:

“Sid Backstrom attempted to corroborate the petitioner’s denials, but failed an FBI polygraph.  David Zachary Scruggs also failed an FBI polygraph showing deception when he said he knew nothing about money changing hands”.

Others found it “unbelievable” that the Government’s Response made mention of the polygraph tests.  In her day-after story, Patsy Brumfield had comments from Scruggs’ attorney, former Missouri Supreme Court Justice Edward “Chip” Robertson:

“Robertson said he’s surprised they breached a confidentiality agreement about the polygraph, saying its results aren’t reliable or admissible as evidence. (emphasis added)”

Clearly, the Government needed an argument that would likely cause Judge Biggers to flip his wig and deny Zach’s motion.  The reliability of the 404(b) “wig” the Government put in Judge Biggers’ “ear” when the case appeared headed to trial was refuted by the recently obtained documentation incorporated into Zach’s motion – and the Government had little choice but to include a related admission in its opposition response: Continue reading “No surprise, little substance – not much thinking evident in Government’s cognitive map – USA opposes Zach Scruggs’ Motion”

As different as the two brothers Darryl – the other Allstate qui tam case: ex rel Denenea v Allstate

Although their shared name is sufficient reason for thinking the two brothers Darryl are one in the same, an examination of available evidence reveals two distinctly different individuals.  In this third of an intended four-part series, SLABBED examines the evidence available on the most recently unsealed Katrina qui tam case, ex rel Denenea v Allstate – a distinctly different case from the other also named Allstate, ex rel Branch Consultants v Allstate.

In an attempt to convince the federal courts in Louisiana these two qui tam cases are one in the same and both should be dismissed, Allstate has launched what can best be described as a “wool-over-the-court’s-eye scheme“.  A key element of the scheme and the centerpiece of Allstate’s defense is, of all things, the qui tam case filed in Mississippi, ex rel Rigsby v State Farm – perhaps because several years ago Denenea caught the yarn the Company was trying to spin and unraveled their knitting right in front of none other than the federal district judge assigned to Denenae’s qui tam case, Judge Sarah Vance.

Every bit of yarn in Allstate’s knitting bag was tossed at Denenea in the Company’s Motion to Dismiss but Denenae’s case has a needle that makes it as distinctly different from both Branch and Rigsby as one “brother Darryl” is from the “other brother Darryl”: Continue reading “As different as the two brothers Darryl – the other Allstate qui tam case: ex rel Denenea v Allstate”

Breaking News! Judge Senter’s issues two Orders in Rigsby qui tam – makes it clear he’s the boss, will hold December 1 Status Conference and reschedule trial

Well, State Farm’s proposed juror questionnaire obviously didn’t tickle Judge Senter’s funnybone like it did mine, nor did he find it as valuable as Sock.  However, there’s no guessing what he thought as he issued an Opinion – Order denying State Farm’s motion today and made his thinking exceedingly clear:

In the past I have used a juror questionnaire consisting of a single yes or no question: “Do you or any member of your family have a pending lawsuit for Hurricane Katrina damages, or have you had such a lawsuit in the past?” This questionnaire has worked well in the past as a means of screening jurors who would be subject to dismissal for cause without creating any of the problems outlined above. I will follow this same procedure in this case.

He actually said a bit more about his objections but I need to move quickly to the other order Judge Senter issued today because I, first, have to apologize for leaving a related October 5, 2010 Orderr lingering in my bulging “drafts file”.

I will decline at this time to vacate my order of dismissal until I reach the merits of the USA’s objection to this settlement…negotiated between Relators and Forensic Analysis and Engineering, Inc. (Forensic)…the United States of America shall have a period of twenty days within which to make known any objection it may have to the terms of the settlement at issue by the filing of appropriate pleadings; and Since the United States of America is not a party to this action, I will allow the Relators and the other parties a period of ten days from the date the United States files its pleadings to respond through pleadings addressing the issues raised by the United States. (emphasis added)

The USA was johnny felicia-on-the-spot and a few days early filing the government’s Notice of Rejection of Settlement…and Motion to Dismiss…[Forensic]Without Prejudice – but I suppose an assistant US Attorney pays more attention when reportedly under consideration for the top spot.  Nonetheless, the government has a history of untimely filing in the Rigsby qui tam case that includes a nunc pro tunc January 11, 2007 Application for a Second Six-Month Extension of Time to Consider Election to Intervene.

Judge Senter may or may not have been surprised by the timing of the government’s filing but hisOrder Continuing Trial and Setting Status Conference clearly indicates he was perplexed by the government’s position. Continue reading “Breaking News! Judge Senter’s issues two Orders in Rigsby qui tam – makes it clear he’s the boss, will hold December 1 Status Conference and reschedule trial”

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 NEMS360.com”:

“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: Continue reading “USA tells Judge Biggers more time needed for response to Zach Scruggs”

about the question Judge Senter popped – a Rigsby qui tam update

As last night’s Breaking News reported, Judge Senter has popped the big question:  should “the scope of…[the Rigsby qui tam]… litigation…be expanded to include evidence concerning properties other than the McIntosh residence?

Some were expecting Senter to consider the question after Judge Vance rocked on Rockwell in her Order expanding the scope of discovery in ex rel Branch v Allstate:

… allegation that defendants engaged in a far-ranging scheme is a natural extension of the specific information asserted in its complaint…nothing in the statutory language requires Branch to be the original source for each manifestation of the allegedly fraudulent schemenone of the relevant case law — as articulated in Rockwell, the cases cited in Rockwell, as well as post-Rockwell cases that apply the claim-smuggling prohibition — holds that the claim-by-claim analysis requires a district court to make original-source determinations with respect to every example or instance of a single scheme of fraudulent conduct…

However, instead of relying on Vance’s decision to raise the question, the Rigsbys took a more direct approach, asking Judge Senter “for additional time to conduct Discovery into “the Scheme”‘:

“Relators, through limited discovery, have already obtained sufficient evidence to demonstrate that State Farm engaged in a broad, systemic, intentional scheme to defraud the government. Moreover, discovery has revealed that State Farm’s scheme extends far beyond the McIntosh flood claim…”

Interestingly, neither Judge Vance’s Order nor the Rigsbys’ Motion addressed “the Solicitor General’s amicus brief for the United States in Ortho Biotech Products v. United States ex rel. Duxbury (09-654), filed with the Supreme Court on May 19, 2010″:

Subjecting qui tam relators to that requirement [pleading with particularity each false claim submitted pursuant to a fraudulent scheme] is especially unwarranted because it Continue reading “about the question Judge Senter popped – a Rigsby qui tam update”