United States v. Scruggs

• Decision Date: 16 August 2012
• Docket Number: No. 11–60564.,11–60564.
• Citation: 691 F.3d 660
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Zachary SCRUGGS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

691 F.3d 660

UNITED STATES of America, Plaintiff–Appellee,

v.David Zachary SCRUGGS, Defendant–Appellant.

No. 11–60564.

United States Court of Appeals,Fifth Circuit.

Aug. 16, 2012.

As Corrected Aug. 17, 2013.

Clayton Adair Dabbs, John Marshall Alexander, Asst. U.S. Atty. (argued), Charles Wiley Spillers, Asst. U.S. Atty., Oxford, MS, for Plaintiff–Appellee.

Edward D. Robertson (argued), Bartimus, Frickleton, Robertson & Gorny, Jefferson City, MO, for Defendant–Appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before HIGGINBOTHAM, DAVIS and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

David Zachary Scruggs (“Scruggs” or “Zach Scruggs”) pleaded guilty to an one-count superseding information charging misprision of a felony in violation of 18 U.S.C. § 4. The district court sentenced Scruggs to fourteen months imprisonment and one year of supervised release. After he was released from prison but before the conclusion of his term of supervised release, Scruggs filed a Motion To Vacate Conviction Pursuant to 28 U.S.C. § 2255.¹ In his § 2255 motion, Scruggs claimed (1) that, in light of the Supreme Court's decision in Skilling v. United States² and other legal developments, he was actually innocent of all charges, (2) that his guilty plea was involuntary due to government misrepresentation of potential testimony of a prospective witness, and (3) that he received ineffective assistance of counsel because his original trial counsel had a conflict of interest.

After holding an evidentiary hearing, the district court denied Scruggs's § 2255 motion.³ The district court granted a certificate of appealability (“COA”) on three issues: whether Scruggs met the standard for proving his “actual innocence”; whether his guilty plea was involuntary due to government misrepresentation; and whether he received ineffective assistance of counsel. After careful consideration, we AFFIRM.

I.

This case arose out of an attempt to corrupt Judge Henry Lackey, a Mississippi state judge, in connection with a Hurricane Katrina-related lawsuit styled Jones v. Scruggs. The actors in the scheme included three members of The Scruggs Law Firm (“the Firm”): Zach Scruggs, his father Richard Scruggs, and Sidney Backstrom. Also involved were Timothy Balducci, an attorney who worked regularly with the Firm, and Steven Patterson, Balducci's associate who worked with the Firm on various projects and joint ventures but was not an attorney.

Zach Scruggs, Richard Scruggs, and Backstrom had worked on Hurricane Katrina litigation against State Farm Insurance Company. That litigation resulted in the Jones suit, which involved a dispute over the division of several millions of dollars in attorney's fees arising from a settlement with State Farm. The scheme began with a March 2007 meeting at the Firm between Balducci and Patterson and Zach Scruggs, Richard Scruggs, and Backstrom. Zach Scruggs and Patterson knew that Balducci had a close personal relationship with Judge Lackey, and the group decided that Balducci would approach Judge Lackey in an ex parte manner and speak favorably about Richard Scruggs and the Firm in relation to the Jones suit.

Balducci met with Judge Lackey and explained that he would consider it a personal favor if the judge could resolve the Jones suit in favor of the Firm and Richard Scruggs by sending the whole case to arbitration or dismissing some claims and sending the case to arbitration. Balducci also said he hoped to have Judge Lackey become “Of Counsel” with his law firm upon retirement. Judge Lackey became suspicious that he was being asked to do something illegal and contacted the U.S. Attorney's Office. The U.S. Attorney's Office and FBI installed recording devices on Judge Lackey's telephone and in his chambers. The FBI later tapped Balducci's cell phone and Patterson's land line.

About a month after Balducci's meeting with Judge Lackey, Backstrom contacted Balducci and told him that the strategy had changed and that the Firm wanted Judge Lackey to send the entire Jones suit to arbitration, rather than dismiss some of the claims. Balducci received an order along those lines to present to Judge Lackey. Over the course of the next month, Balducci twice visited Judge Lackey to discuss the order. After a few months, Judge Lackey asked Balducci: “If I help them, will they help me?” Balducci said he could “get that done.”

After meeting with Judge Lackey again a few days later, Balducci placed a call to the Firm. During the call, according to Balducci's account, Balducci told Backstrom that Judge Lackey wanted $40,000 to enter an order compelling arbitration in the Jones suit. He asked Backstrom whether “y'all” or “they” would reimburse him for the $40,000, and Backstrom replied that he would get back to Balducci and let him know.⁴ Two or three days later, Balducci purportedly talked to Backstrom again on the phone about the $40,000, and Backstrom said, “You're covered.”⁵

Balducci visited the Firm to pick up the arbitration order for Judge Lackey to sign and then delivered the proposed order with an initial installment of $20,000 to Judge Lackey. A few weeks later, on October 18, Balducci delivered $10,000 in cash to Judge Lackey and picked up the order. Later that day, Richard Scruggs told Balducci that he had developed a cover story to reimburse Balducci and Patterson for the $40,000 payment to Judge Lackey: the reimbursement would be under the cover of hiring Balducci for $40,000 to create a voir dire template for an upcoming trial. When Balducci delivered Judge Lackey's order to the Firm that day, he saw Zach Scruggs and gave the order to him. Balducci then picked up the $40,000 reimbursement check and voir dire materials from Richard Scruggs's desk.

Later that same day, Balducci telephoned the Firm and told Backstrom that he had delivered the copy of “those papers we've been waiting on.” Later in the telephone call, Balducci added, “[J]ust so you'll know ... Dick hired me to prepare voir dire for the upcoming Katrina trial y'all got in Jackson County.” Backstrom said that was a “good deal for everyone.” The telephone call was recorded. In the weeks that followed, several members of the Firm, including Zach Scruggs, called Patterson “looking for Tim [Balducci]” about the status of the voir dire.

On November 1, 2007, Balducci met with Judge Lackey in his chambers to deliver the remaining $10,000 payment and pick up a newly revised arbitration order. After the meeting, an FBI agent approached Balducci, escorted him to an FBI vehicle, and showed him the video of him paying the bribe to Judge Lackey. Balducci immediately agreed to cooperate with the Government.

Balducci wore a body microphone to the Firm later that afternoon. In Backstrom's office, Balducci told Backstrom that before Judge Lackey could file the order that Balducci had delivered to Zach Scruggs two weeks earlier, the plaintiffs in the Jones litigation had filed a motion opposing sending the case to arbitration and that Judge Lackey had amended the order to reflect his consideration of the new filing. At this point, Zach Scruggs entered Backstrom's office, and Balducci told him: “Zach, let me bring you up to speed. Alright, this is on the Judge Lackey deal. Ok?” He told Scruggs and Backstrom that the judge wanted the new language in the order approved before it was entered. Balducci said, “I mean, we can do whatever we wanna do if you wanna clean up any ....” Scruggs replied, “I don't know how to clean it up other than, uh, ‘cause I don't know what he's trying to say.”

The three discussed whether they wanted the Jones suit dismissed by Judge Lackey and sent to arbitration, as opposed to merely stayed pending arbitration. Scruggs replied: “Well, what if Judge Lackey retires on the bench and some other [expletive] gets a hold of it? ... I, that's what I think and thought the court was gonna do .... I mean, Lackey's uh, uh, fine but you know who the [expletive] else is gonna get this thing.” Balducci responded: “I don't know that I'll have the stroke with the next one.”

Soon after, an intern-receptionist named Ashley Young knocked and opened the door to Backstrom's office to tell Zach Scruggs that he had a phone call from a “Tracy Lott.” Scruggs told Young to tell the caller he was not there and take a message. Young agreed to take the message. Scruggs said, “Thanks,” and the door to the office closed loudly. Scruggs then immediately spoke again, saying, “I don't wanna answer a Tracy Lott who I don't know anything about by off chances.” After a few seconds' pause, the conversation continued:

Balducci: Um, 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 sweet potatoes down there. So. Because of all of this that has come up.

Backstrom: Mmm-hmm.

Balducci: So get it right. Get it how you want it 'cause we're payin' for it to get it done right.

Backstrom read part of the order aloud and concluded that he “wouldn't change anything.” The door then closed loudly again, and Balducci and Backstrom continued their conversation without Zach Scruggs. Balducci asked if Richard Scruggs was angry over how long it had taken to get the order from Judge Lackey. Backstrom responded that he had placated Richard by telling him that there was a lack of urgency. Backstrom said “they bought that for a little while” but then “they just got it in their heads that they wanted it” and asked Backstrom to call Balducci. Balducci said he could put those concerns to rest.

Balducci then went to Richard Scruggs's office and told Richard that Judge Lackey needed another $10,000 payment on the “Johnny Jones order business.” Richard Scruggs agreed to “take care of it” and said he would reimburse Balducci for the $10,000 bribe by hiring him to do jury instructions in addition to the voir dire research. Richard Scruggs followed up...