Scruggs Nation, Day 20: the wire

Let’s take another look at yesterday’s defense motion in USA v. Scruggs in northern Mississippi, the case of alleged bribery, not to be confused with USA v. Scruggs in northern Alabama, the criminal contempt of court case. 

In the Alabama case, by the way, the docket shows a February 28 hearing on all pending motions has been scheduled before the new judge, C. Roger Vinson. 

Back to the bribery case. (Click here to read yesterday’s motion).  A few things the motion reveals:

  • Through discovery, the government has a provided the defense with a 90-minute "consensual recording." We know this does not consist of the meetings of Tim Balducci at Judge Lackey’s office, because the motion later says none of the Lackey audio or visual recordings have yet been turned over.  A consensual recording is just what it sounds like — one of the people involved consented to the recording being made. The motion says "four defendants" can be heard on the recording. Whether the four includes Balducci, or means the Scruggses, Backstrom and Patterson, I don’t know.
  • The government also turned over a cassette with a consensual recording. No other information about this.   
  • The government  provided a CD with 124 recorded telephone conversations. Even considering this investigation went on for months, that is a surprisingly high number to me.
  • The government has not provided evidence seized in the November 27 raid on Scruggs’ office, evidence seized in the December 10 raid of Joey Langston’s office, any telephone records, any photographs or other physical evidence, any exculpatory evidence or, as mentioned, the Lackey recordings.
  • A government "taint team" is working on electronic records seized from the Scruggs and Langston law offices. What is a taint team? This excellent link tells you: a team not otherwise part of the investigation who reviews electronic records, some of which will not be connected to the alleged crime, to protect the government against suppression hearings based on the premise investigators reviewed records they had no right to see.
  • The Scruggs defense team is planning suppression hearings based on the warrant for the November 27 search, the application for and extension of the wiretaps, and to dismiss some or all the counts of the indictment.

Just to return for a moment to the indictment itself (click here to see it), I’ve been mulling the allegations over, and I can’t decide about the alleged events of November 1.  On that day, Balducci supposedly delivered the last $10,000 of the agreed upon $40,000 to Judge Lackey, and allegedly Dickie Scruggs had already given Balducci a $40,000 to cover this.  On that same day, Balducci allegedly had the conversation with Zach Scruggs and Balducci where he said "we paid for this ruling, let’s be sure it says what we want it to say." And also on November 1, Balducci allegedly had a conversation with Dickie Scruggs where Scruggs agreed to pay an extra $10,000 to Lackey.  These last two items tend to support a theory that Balducci was already cooperating with the government at this point — the statement to Zach Scruggs and Backstrom smacks of one made to obtain their reactions on tape, and there is no reason to ask for a fake extra $10,000 payment from Dickie Scruggs unless to further implicate him and get documentary and audio recording evidence against him.  However, if Balducci was cooperating, why deliver the last of the $40,000 to Lackey?  What would be the purpose of delivering alleged bribes when both the bribee and the briber knew the transaction was fake?  Maybe readers can supply the answer.

Lastly, thanks for all the continued shout outs from across the Web: Overlawyered, Y’all Politics (which has become a veritable Scruggs Central), the Wall Street Journal Law Blog (I notice they have a noun definition of "scruggs" that may or may not be compatible with my definition of the verb "to scruggs"), folo and many more than I can keep track of.  And thanks for all the continued e-mails from readers: tips, observations, documents.  Very valuable, very helpful as we search for answers together. As always, you know where to reach me: drossmiller@bpmlaw.com.

 

16 Comments

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16 Responses to Scruggs Nation, Day 20: the wire

  1. Sam

    I would imagine that the first $40,000 payment from Balducci to the Judge, snared Balducci. Balducci was confronted with the evidence against him, and decides to cooperate. The subsequent evidence gathered during to second $10,000 payment, snared the others with direct evidence of their culpability, which may be difficult if not impossible for them to explain, let alone refute.

  2. Wes

    The defense has surmised in their brief
    for an extension that the FBI has other
    tapes in addition to the 124 handed over
    to the defense. At some point, the government must produce them as well. Could this be a tipping point to snag an
    early plea bargain since the government
    is clearly hoping for one before showing
    the defense all their evidence? In addition, can the defense use entrapment
    as a strategy since Balducci flipped out so early? Just curious.

  3. observer

    The biggest misconception about this indictment from the start from most people unfamiliar with federal criminal investigations, was that it contained all of the evidence obtained within it.
    A conspiracy indictment has to name what the conspiracy was about, what crime the defendants were conspiring to commit, and some (but not all) of the overt acts that were committed in furtherance of the conspiracy.
    What it does not have to contain, but which always exist in an investigation of this size and scope, is evidence of additional overt acts not listed, admissions by defendants, statements of other witnesses, the existence of Title 3 affidavits, and a lot of other things.
    From reading the indictment, it is almost a certainty that on Sept. 21 (and on other days for sure) Balducci’s phone was already being monitored under a Title 3 interception order. It is also pretty evident that on October 18, that Patterson’s phone was being monitored under a Title 3 interception order. That’s only two wiretaps, so unless one of those had an extension, there is at least one wiretap on one phone that does not show up in the indictment, again a common practice in federal indictments.
    The indictment also pretty clearly reveals that Balducci was confronted by the FBI upon delivering the last of the $40,000 to Judge Lackey on November 1. Balducci, at this point, had already told the Judge (in conversations monitored by the FBI) that other parties (i.e. Scruggs), were involved, as well as the information the FBI undoubtedly already had from the wiretaps they had going on Balducci and Patterson’s phones.
    At this point, agents would have told Balducci how the cow ate the cabbage, how much trouble he was in, and asked him if he wanted to cooperate, or to call a lawyer and take his chances. There is little doubt now that Balducci must have said he wanted to be on the FBI team, and gave them information about Scruggs and the others at that point.
    Then, the normal way of doing things, in order to test whether Balducci was telling the truth or not, would be to have him make phone calls to the other conspirators where he was told to talk about the bribery to see what they would say, and/or to put on a body wire and go meet with them for the same purpose.
    It appears from reading the indictment, that the agents, in order for Balducci to have a good reason to be talking about this bribery, (that should have been done and consumated and over by the final payment on Nov. 1), had Balducci go back and say something like, “Judge Lackey wants $10,000 more dollars for the order. What should we do?”. Or something like that, to get more admissions from co-conspirators that may not have been intercepted on the wires, or just to get more conversation and admissions from those who had. It sounds like this was probably a 90 minute conversation, at the end of which an agreement was made to give Judge Lackey $10,000 more dollars, with a cover story (and, of course, this money was never passed to Judge Lackey, who was completely out of the investigation by them).
    Knowing how things work, the FBI must have been happy with the admissions they got, for there is absolutely no reason they could not have sent Balducci back in again, on some other pre-text, until they did have the admissions they were looking for (or to the point that it appeared they weren’t going to get any and Scruggs and company appeared to be innocent). They didn’t send him in again apparently, if the defendants correctly stated the discovery in their motion to continue.
    The other question is how many of the 124 intercepted phone calls are “pertinent”. It’s hard to say anyway, because a lot of times you don’t know exactly what a call means until later, so probably not all of those calls would be admitted in a trial.
    And, even though you “minimize” non-pertinent calls (calls that don’t have anything to do with committing a crime) there is still a small portion of them recorded, and they are provided to the defense as discovery. In fact, most probably are non-pertinent, based on other wiretap investigations. But, any pertinent ones will be the co-conspirators talking about the bribery or it’s cover up and could be very hard to explain away.
    As far as entrapment as a defense. There are a couple of problems. One, you have to allege you were entrapped by the government, not a private party. So any evidence gathered before Balducci was cooperating would be used to show you were already pre-disposed to commit the crime. Another problem is that Scruggs would be opening the door wide open to evidence of other bribery attempts by him, if the government has any, to show he was in fact, pre-disposed to commit the crime of bribery.
    But, the biggest reason entrapment rarely works as a practical defense is that you have to admit you actually committed the elements of the offense, i.e. that you actuall attempted to bribe a judge, before you can claim that you were entrapped (in other words, in criminal cases you don’t get to plead in the alternative, i.e. “I didn’t do it, but if I did, I was entrapped.”)
    That is hard to do for most defendants, and a half effort at this on the stand just opens you up for a gutting by the prosecutor on cross examination.
    Just some of the things that are probably a big part of the reason why a continuance is being requested.

  4. Ironic

    A couple thoughts on PL Blake.
    First, what are the chances that PL “Dark Side” Blake would use nefarious methods to obtains phone records?
    Second, what are the odds that PL “Fifty” Blake would funnel funds back to Scruggs as some scheme for Scruggs to take a larger portion of the pot of legal fees? (Can PL rap? 50-million could go on tour with 50-cent)
    The answer, in my opinion, to the first question is 100%. No doubt in my mind that someone that has been convicted of bribing a bank official, shortchanged the govt by millions for storing grain, and was labeled the “Dark Side” by Mr. Scruggs himself would think twice about using his $50 million to quickly or illegally buy some phone records and pass them along. Mr. Scruggs would ask no questions, of course, and simply say thank you for the information that is just what they were looking for.
    Not sure about the second question. Either Mr. Blake was doing something extraordinary for $50 million, or maybe he was doing something hardly at all? I don’t know. He plays dumb really well. Or, maybe, if he’s not playing dumb, then he simply has a side deal with Scruggs to pass money back and forth to benefit Scruggs and screw Scrugg’s partners and clients.
    Is Scruggs more like Robin Hood or a Gangster? The court cases should give us more clues. I just cannot see Robin Hood taking 40% off the top, especially after crowing to the NY Times about how he was willing to take 1%.
    Ironic

  5. sam

    One purpose for delivering the alleged bribes, when both the bribee and briber both knew the transaction was fake, might be that they were not the only people in the room, or in the alternative, they may have party to a conference call taking place, during the time that the alleged bribe changed hands.

  6. Memphis

    Whew, hard to follow some of these posts but ill try. Balducci had to of flipped before Nov. 1. Imagine having been caught by FBI then same day go talk to your parters in crime.Definitely between 18th of Oct – Nov 1
    What if the Judge purposely put something wrong in the first amended order. Then Balducci having already flipped went back to em and said “we paid for this ruling; lets be sure it says what we want it to say.”
    They found something they wanted changed so then agree to pay Judge Lackey the additional 10,000 to fix it, which also helps build the feds case.

  7. observer

    Well, that’s more ‘what ifs?’ than I can process.

  8. jim

    No one outside of an attorney or law firm got more dollars than PL Blake. Surely some of this money was going to take care of certain people for certain needs. Dis RS pay the taxes on this money or was a 1099 given and it was expensed and if so has PL paid the taxes. Where is this money now,can it be traced, can it come full circle back to RS??

  9. MORE COWBELL

    Here’s the reason for the extra $10,000. If my employer gives me $40,000, I have to pay my taxes/fica out of that money. I need the extra $10,000 just to break even.

  10. duckhead

    In all this mess, I cannot help but to wonder what role Sidney Backstrom plays.
    His attorney, Frank W. Trapp of the Phelphs Dunbar firm has publically maintained that contrary to speculation, his client is not guilty and has no intention of pleading.
    Backstrom has also retained J. Rhea Tannehill, Jr. of the Oxford firm Tannehill & Carmean PLLC.
    Trapp has signed off on the “Motion for Continuance of Criminal Case” along with other defense attorneys Hiram C. Eastland, Jr., Anthony L. Farese, John W. Keker, and William M. Quin, Jr.
    Mr. Trapp has a local reputation of taking on difficult cases and not losing. Keep an eye on Mr. Backstrom, the fifth guy who was indicted and watch his masterful defense in action.
    DH

  11. observer

    I’m not sure a defense attorney getting up and saying his client is innocent, and has no intention of pleading guilty, really means anything. As in civil cases, in a criminal case, no defense attorney ever gets up and says, “My client is guilty as hell, and is going to plead guilty as a result. I’m on my way to the prosecutor’s office to see what kind of deal we can get.”
    Any of the attorneys, who at this point, are not standing in lock step with the Scruggs, are going to be immediatley shunned and thrown under the bus with Balducci.
    If another defendant makes the decision to cooperate in this case, there is no going back and changing their mind later, and smart defense attorneys, even in this current defendant coalition, are going to be playing their cards close to the vest, especially from the other defendant’s attorneys.
    I would say the only person Dickie can be one hundred percent sure of not flipping without Dickie’s blessing, is going to be Zac.

  12. duckhead

    After rereading the well written lengthy post, I have to believe that “Observer” practices law in some capacity.
    In case you are not local to Mississippi, it is my opinion that there are certain defense attorneys like Trapp who you hire if you sincerely believe you have a defendable case and there are others who you hire if you are guilty as hell and know that you have been caught.
    Trapps rhetoric to the media is certainly expected regardless of what the future holds but he is not an attorney you would retain just to get a “sunken ship client” the very best sentance possible.
    Its nice to say that everyone is innocent until proven guilty, but the evidence in some cases can be so compelling that a defendent has no reasonable defense and is forced to resort to “The dark side of the force” as Scruggs so aptly describes.
    And BTW, I am not an attorney, just someone who has lived in MS all my life and watches criminal courtroom drama from the sidelines.
    DH

  13. observer

    Yes, you called it right. I am a long time practicing attorney in Mississippi.
    And, you called it right in that there are definitely attorneys who you select for their trial skills, and attorneys you select for their negotiation skills.
    It may be that hiring Trapp signals an intention on Backstrom’s part to go to trial. It may also just be an indication that he is on a boat trip on the river called Denial (that is not in Egypt).
    With a client like Scruggs, who is sixty one years old, and looking at some pretty tough sentencing guidelines, whether he pleads guilty or goes to trial, there is little incentive to negotiate a plea that gets you out of prison at 80 years old instead of 100. He’s going to trial and it makes sense no matter how much evidence there is.
    With younger clients, the worst thing an attorney can do, as a paid advocate, is to take their case to trial, knowing they are going to probably lose, just because their client never thought they would be caught, refuses to acknowledge the evidence against them, has the bucks to pay for it, and just wants them to go to trial and get them off.
    An attorney, not matter how good, would be a fool to not have noticed that Paul Minor was just convicted on a tenth of the evidence that there appears to be in this case.
    But, OJ Simpson got off, and anything is always possible in front of a jury.

  14. Jim

    Observer,
    I think you pretty well have the time line and the sequence of events nailed. The only concern I have is if TB flipped on November 1 the authorities had very little time to get everything prepped and done for him to have an encounter with the others on that very same day. Of course they probably had the meeting set for early morning, had the wires ready, had the plan ready and had TB execute the plan that afternoon.
    One final question–how deep and wide can this thing go? As they uncover evidence and facts can it lead to other problem areas that can be acted upon? Something tells me that this may be only the start of bigger and better things yet to come.

  15. observer

    It may sound unlikely to people unfamiliar with this type of investigation, that federal agents could put a successful undercover meeting together, with Balducci and the other defendants that quickly.
    But, this is what federal agents do for a living, and what might seem too hard to do, to someone who doesn’t know how to do it, is just another day at the office to someone who does.
    And, as to how far this investigation will eventually go? Well, now that’s the fifty million dollar question, isn’t it?

  16. m.williams

    On comment, “Robin Hood”, who, in the forest,fell upon richness and took it. Dickey’s Robin presents a very different problem for good deeds – but a like result. Mike Moore privitized law for good deeds. Governor Gregoire tightened the shoe laces. Mike and Dickie flew off in the Lear to mug the Dumbo’s and Dunbars for sealed arbitration fees. American States are factually co-conspirators and the partners with corporate entities who unabashedly admit to a programable causative role as a vast, unrelenting, pay-as-you-go killing machine. Now, in SKG, and Alabama blues, history repeats itself. Oh. So, it’s true. A good cause vitiates all.