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Judge Neal Biggers denies Zach Scruggs 2255 motion to set aside guilty plea

Judge Neal Biggers denies Zach Scruggs 2255 motion to set aside guilty plea

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Published by: yallpolitics on Aug 03, 2011
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The fourth partner in The Scruggs Law Firm, David Shelton, testified that he “didn’t do much of any work on the Katrina-related litigation,” that he did not actively participate in the
 Jones
case, and thathe never discussed the
 Jones
case with Balducci. On the other hand, Petitioner, Richard Scruggs, andBackstrom met with Balducci and Patterson to discuss influencing the outcome of the
 Jones
case in lateMarch 2007, and it was at this meeting when the scheme was launched to have Balducci attempt to
IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPIUNITED STATES OF AMERICAV.CRIMINAL CASE NO. 3:07CR192-B-ADAVID ZACHARY SCRUGGS
MEMORANDUM OPINION
Presently before the court is Petitioner’s Motion to Vacate his conviction pursuant toTitle 28 U.S.C. § 2255. Upon due consideration of the motion, response, testimony, exhibits,and supporting and opposing authority, the court is ready to rule.Procedural BackgroundThe Petitioner, David Zachary Scruggs, was indicted on November 28, 2007, along withco-defendants, Richard F. Scruggs, Sidney A. Backstrom, Timothy R. Balducci, and Steven A.Patterson on a six-count indictment arising from an attempt to bribe Judge Henry L. Lackey, aMississippi circuit court judge, for a favorable ruling in a civil lawsuit styled
 Jones, et al. v.Scruggs, et al.
in the Circuit Court of Lafayette County, Mississippi. The
 Jones
civil suit wasfiled against The Scruggs Law Firm, Richard Scruggs, and others, in a dispute over the divisionof $26.5 million in attorneys’ fees arising from a settlement with State Farm Insurance Companyover numerous Hurricane Katrina damage claims. David Zachary Scruggs, Petitioner herein,Richard Scruggs, and Sidney Backstrom were all partner attorneys in The Scruggs Law Firm,who had worked for the firm on the Hurricane Katrina litigation against State Farm that resultedin the
 Jones
suit.
1
Timothy Balducci was an attorney who worked regularly with The Scruggs
Case: 3:07-cr-00192-NBB-SAA Doc #: 400 Filed: 08/03/11 1 of 44 PageID #: 6127
 
influence Judge Lackey.
2Law Firm. Steven Patterson, a non-attorney and former State Auditor of Mississippi, wasBalducci’s partner and also worked regularly for The Scruggs Law Firm on various projects and joint ventures.Petitioner retained counsel and pleaded “not guilty” to all six charges on November 28,2007. Subsequently, all of Petitioner’s co-defendants pleaded guilty to Count I of theIndictment, which charged two offenses: conspiracy to commit federal program bribery inviolation of 18 U.S.C. §§ 2 and 666(a)(2)(b), and conspiracy to commit honest services fraud inviolation of the wire fraud statute, 18 U.S.C. §§ 2, 1343, 1346. Thereafter, Petitioner, as the loneremaining defendant, entered into a plea bargain with the U.S. Attorney’s office whereby hewaived indictment and pleaded “guilty” to a one-count information charging misprision of afelony on March 31, 2008. On July 2, 2008, Petitioner was sentenced on the reduced charge of misprision of a felony. He appealed neither his conviction nor his sentence. Petitionersuccessfully served his sentence, and his period of supervised release ended on August 18, 2010 .On August 18, 2010, Petitioner filed a motion to vacate his conviction pursuant to 28U.S.C. § 2255, asserting that the United States Supreme Court’s 2010 decision in
Skilling v.United States
, 130 S. Ct. 2896 (2010), decriminalized the conduct upon which his conviction formisprision of a felony was based. In
Skilling
, the Supreme Court narrowed the application of thehonest services fraud statute, 18 U.S.C.A. § 1346, to criminalize only schemes to defraudinvolving bribery and kickbacks.Petitioner admits that he knew about and was involved in the scheme with his co-defendants to attempt to influence Judge Lackey’s rulings in the
 Jones
civil lawsuit. Petitioner
Case: 3:07-cr-00192-NBB-SAA Doc #: 400 Filed: 08/03/11 2 of 44 PageID #: 6128
 
3claims, however, that he did not know that his co-defendants paid Judge Lackey a bribe to securea favorable ruling, and therefore, he argues that his conduct was not illegal pursuant to
Skilling
because the “felony” he admitted to have misprisioned is not a felony after
Skilling
. Petitionerclaims that he is “actually innocent” of the misprision of a felony conviction to which he pleadedguilty because he did not know about the bribe. Inapposite to his position that he did not knowabout the bribe, Petitioner argues in the alternative that even if he did know about the moneypaid to Judge Lackey, he would have assumed that the payment was a gratuity and not a bribe.Along with his
Skilling
“actual innocence” claim, Petitioner contends that his convictionshould be vacated because his plea was involuntary due to (1) Government coercion andmisrepresentation and (2) because he received ineffective assistance of counsel.An evidentiary hearing was held on May 23-25, 2011, on Petitioner’s Motion to Vacatehis conviction pursuant to 28 U.S.C. § 2255, at which eight witnesses testified, includingPetitioner’s alleged co-conspirators, Timothy Balducci, Sidney Backstrom, and Steven Patterson.Prior to the evidentiary hearing, the court, in a partial summary judgment order, ruledthat the
Skilling
decision should be applied retroactively to petitioner’s case, since the
Skilling
decision is substantive and narrows the scope of a criminal statute by interpreting its terms.
SeeSchriro v. Summerlin,
542 U.S. 348 (2004);
 Bousley v. United States
, 523 U.S. 614, 620-21(1998). The court also ruled that petitioner’s
Skilling
“actual innocence claim” is timely underthe one-year statute of limitations for Section 2255 motions, because
Skilling
was decided onJune 24, 2010, and Petitioner filed his Section 2255 motion within one year of that decision.
See
28 U.S.C.A. § 2255(f). The court reserved judgment on the timeliness of Petitioner’sGovernment misrepresentation claim and did not address Petitioner’s ineffective assistance of counsel claim in the partial summary judgment order.
Case: 3:07-cr-00192-NBB-SAA Doc #: 400 Filed: 08/03/11 3 of 44 PageID #: 6129

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