This probably makes little sense to non-bloggers, but I have always had a favorable feeling toward Zach Scruggs because of his work on the Scruggs Katrina Group blog. I thought he did a creditable job there — the blog was not all it could have been, but then again, he had other things to do. I actually thought they should have put some professional writer to work on it with him and make it into a Katrina Central from the policyholders’ perspective. But on second thought, the media was generally so accepting of the SKG spin that spending extra effort or funds on the blog probably would have been unnecessary as a public relations tool.
A couple times on the SKG blog Zach responded to something I had written, and he, or someone else doing work on the blog, also put Insurance Coverage Law Blog on the blogroll. Despite the fact that even pre-indictment I often satirized or criticized Dickie Scruggs, I stayed on the blogroll — this could have been an oversight, but in any event, no one eradicated my link, and it would have been quite simple to do so. Might sound silly to you, but I thought Zach was a good blogger, I had respect for him because of it and I still do.
So in reading Zach Scruggs’ reply brief yesterday in USA v. Scruggs — the reply to the government’s response to his motion to dismiss based on supposed false testimony to the federal grand jury by Tim Balducci and an FBI agent — I found myself wishing I could buy at least some of what the brief was peddling. But that didn’t work out so good for me. The following passage is a good example of why:
Balducci did not address Zach Scruggs and Sid Backstrom on November 1, 2007, saying that “you guys are paying for it.” Resp. Br. at 5 (citing the grand jury transcript). Such a direct remark to Zach Scruggs as he was heading away from Balducci to the door of Sid’s office on his way out, referencing Zach Scruggs’s direct “payment” for something, would materially alter what was said. It would make it more possible for the grand jury to believe that Zach Scruggs heard this statement and should have responded with a question. But that is not what Balducci said. He actually said, “…we’re paying for it.” (emphasis added) That comment may or may not refer to Zach Scruggs, and may or may not have been directed to Zach Scruggs. Agent Delaney’s version leads to the inference that it was said to, and referenced some action by, Zach Scruggs. That is the ultimate question, not an assumption that the Government can falsely graft into Mr. Balducci’s actual words on November 1. Again, the Government acted improperly by allowing this false statement to stand.
It is probably easier to understand my theorizing about property insurance causation and the meaning of anti-concurrent cause language than it is to parse out this paragraph, but I attempt to do so at some length below. To borrow a metaphor I used in a recent court brief, the arguments in Zach’s motion and reply brief do not appear to be merely grasping at straws, they seem to be imagining straws to grasp at.
Take a look at another paragraph, produced with the subheading used in the reply brief:
2. The Government’s alleged “clarification” of Balducci’s false testimony did not cure the lie
Immediately after Balducci testified that he told Backstrom and Zach Scruggs, “you’re paying for it,” the Government asked, “Is it possible that you might have used the term sweet potatoes again referencing the amount of money involved?” Balducci responds, “I think I did.” Resp. Br. at 3 (citing grand jury testimony). But this testimony merely seems to indicate that Balducci used the term “sweet potatoes” again when he was making the “we’re paying for it” comment. It does not plausibly “clarify” that Balducci never referenced in Zach Scruggs’s presence a payment of $10,000 to the judge at the judge’s request—a claim that Balducci prominently and falsely made to the grand jury not once, but twice, without any correction by the Government.
The Government can only mount this tepid defense of its grand jury questioning in the first place because the Court and all the parties now have transcripts of the November 1, 2007, transcript, and can follow along with the Government’s explanation of what it was allegedly trying to do. But a grand juror hearing Balducci’s false testimony would not—indeed, could not—understand that Balducci had earlier made the “sweet potatoes” reference only one time, and did so instead of (in his own mind, apparently), not in addition to, his allegedly specific reference to the $10,000. The Government knows that given Balducci’s twice-repeated and serious misstatement, it should have asked him to clarify that while in Zach Scruggs’s presence, he never referenced a payment of anything—whether of money or of something else of value, whether of $10,000 or any other amount—to Judge Lackey.
Finally, the Government never even attempted to correct Balducci’s false testimony that he told Zach Scruggs that Judge Lackey wanted something (whether money, sweet potatoes, or anything else) in exchange for and in order to enter his “amended” order. It never corrected Agent Delaney’s false testimony that Balducci told Zach Scruggs the judge had complained about Balducci owing him $10,000 under an “agreement.” These misstatements go to the core of what the Government now admits is the only evidence the grand jury heard regarding Zach Scruggs’s alleged knowledge and agreement to bribe Judge Lackey.
The sophistry of these arguments is just a little more than I can stomach. Consider this: in the November 1 transcript, a copy of which is at the end of this post, you can see for yourself on pages 19-30 that Zach Scruggs is an integral part of an extended conversation about a draft order from Judge Lackey. Not once does he question why he is in possession of such an order, nor does he apparently see anything wrong with it. In fact, incredibly, on page 28 he takes time during the discussion to denounce opposing counsel as unethical:
Well, shit you know, this is the proper thing to do, uh, uh, it, it’s just uh, you know, (UI) it’s just so unprofessional, uh, what these guys have been up to, and unethical. Attaching all these uh, things that they’re ciphering through and God knows what GRADY’s talkin’ to STATE FARM lawyers about. Hey, make this, you know, you got so and so, make that, buy that case we can … get all of it.
Now, if you read this section of the transcript, it appears that Zach Scruggs did not know exactly what was meant by the Jones v. Scruggs case being stayed while it was sent to arbitration. But he is paying attention to what is being talked about, including Balducci’s statement that he doesn’t know if he will have the same "stroke" with another judge if Lackey retires. And he was in the room during this exchange:
Zach Scruggs: It could be .. (UI).
Balducci: God only knows. (pause) Urn, the other piece of this puzzle I hadn’t told you yet is uh, get it how you want it because I’ve got to uh, I’ve gotta go back for another delivery of uh, another bushel of sweet potatoes down there. So. Because of all of this that has come up.
Balducci: So get it right. Get it how you want it ’cause we’re payin’ for it to get it done right.
So to reiterate what we’ve talked about in other posts, the hope of the Zach Scruggs defense team is that it will seem as if these statements made by Balducci were directed only to Backstrom, because the word "you" is used, and elsewhere in the transcript Balducci had used the word "ya’ll" (that’s the spelling used in the transcript) to refer to "you guys." One such instance of the use of ya’ll is on page 20:
Balducci: Addressing that recent filing and he, he wanted me to approve it. Well, the problem is, I didn’t know, ’cause I didn’t, I didn’t have the institutional knowledge of the case to really know if it was ok or not. So I wanted ya’ll to look at it and tell me if it’s ok and if not,
make whatever edits need to be made to it …
Does this seem like it gets Zach off the hook to you? It doesn’t to me. Balducci is asking Backstrom and Zach to edit the judge’s order — in what alternative reality is that exculpatory evidence, even if the ya’ll/you dichotomy has any significance in this conversation?
If any event, if you do a search of the word ya’ll in the document, you will find there is not another use of the word while Zach is still in the room. However, on page 22, there is this use of the plural you when Balducci is speaking of both Zach Scruggs and Backstrom, and possibly others:
Balducci: Or re, I don’t know what he’s trying to say.
Backstrom: Uh, yeah, maybe. Maybe.
Balducci: Do you want, I mean, do we, I mean we can do whatever we wanna do if you wanna clean that up any, if you think it …
Zach Scruggs: I don’t know how to clean it up other than, uh, ’cause I don’t know what he’s trying to say — I mean it’s not bad, but I’m not sure what his intent was.
Here’s another one, on page 24:
Balducci: … that’s all I’m saying is you need to look, get uh, not for purposes of getting this order entered, but you probably all just know anyway from your lawyers what GRADY has filed, but urn, I mean the, I guess the the issue …
Here’s another, one page 26:
Balducci: Yeah. No, I agree. I think the proper way to approach him would be let’s get this order entered, and then if you wanna go back to the well later and get it, get an order sealing the file or closing the file or whatever, we can do that later.
So in light of this, jump back up a little bit, to the "sweet potatoes" passage above. If this you/ya’ll dialectic is real in this conversation, you can see that the speaker immediately before Balducci says he’s going to deliver some more sweet potatoes is Zach Scruggs, and Balducci’s use of "you" in "I haven’t told you yet" would logically be directed to Scruggs, not to Backstrom, if it indeed was directed to only one of them. Then if this is so, why would we suppose that Balducci’s next use of ‘you," in "get it how you want it because we’re payin’ for it to get it done right," would refer to Backstrom and not Scruggs, if Balducci’s use of the word was intended again to address only one of the two?
The other thing the reply brief tries to sell is that the "sweet potatoes" comment is not equivalent to a statement that Lackey wanted another $10,000, because that is not explicitly stated. This is supposedly important because Balducci testified before the grand jury that he had told Backstrom and Zach about the extra payment, and that this means Balducci lied and that the government misled the grand jury. The implication of this argument is one that is pretty absurd, as the government has pointed out: that Zach Scruggs thought Balducci was actually going to deliver sweet potatoes to Lackey. Another possibility — the argument that Zach just didn’t hear this stuff at all because he was leaving the room or distracted while he was leaving the room — is more plausible, but collapses under the weight of the evidence of his previous participation in the conversation.
Ultimately, therefore, neither the motion nor the reply brief are persuasive, I regret to say.
Finally, I’ve published them before, but here for your convenience are Zach Scruggs’ initial motion, the government’s response, a copy of the November 1, 2007 recording made by Balducci at the Scruggs Law Firm, a copy of Balducci’s testimony before the grand jury, and a copy of FBI Agent Delaney’s grand jury testimony.