Zach Scruggs’s guilty plea

Zach is agreeing to misprision of a felony– that is, that he knew a felony was ongoing and was not reported to the proper authorities. The key part of what went on in the plea hearing was establishing what Zach knew and didn’t report– he wanted it clear that he knew about the ex parte contact and the use of Balducci’s relationship to improperly obtain and edit the order, but that he did not know of the bribery scheme.

The agreement is that the original indictment is to be dismissed and Zach Scruggs will plea to an information charging him with one count of misprision of a felony. The government will recommend a sentence of probation (the charge carries up to a three year sentence). Both the government and the defense reserve the right to speak at sentencing. There is no deal as to other matters.

The surprising feature of the plea is that it does not in any way assure Zach Scruggs of a probation sentence– Judge Biggers can do anything he wishes. To understand what I mean, compare the plea agreement that Sid Backstrom entered last week: It specifically provides that under Federal Rule of Criminal Procedure 11(c)(1)(c) that the particular sentence is the appropriate disposition of this case and that if the court does not accept the recommendation for Backstrom (2 1/2 years), Backstrom is allowed to withdraw his plea and proceed to trial. The government could have agreed not just to recommend probation but that it is the appropriate sentence, and could have agreed that Zach has an out if the sentence is greater. While that form of agreement does not directly bind the court, it comes as close to binding the court to a specific limit on the sentence as a plea agreement can do. The plea Zach entered does not have this protection. Unlike Sid Backstrom, there is absolutely nothing that Zach Scruggs can do if the judge imposes a greater sentence. Zach can get from zero to three years consistent with this plea.