Zach Scruggs responds on the depositions

There are three responses. The most interesting on doesn’t relate to discovery (directly, anyhow); after several rounds in which the discussion is right-at-the-edge of being about the merits, Scruggs’s lawyer decides, “Ok, the Government is repeatedly making legal assumptions about this case to try to limit, and we are going to use this brief to show you why those assumptions aren’t warranted.” Call it a bit of an early trial brief, because it doesn’t tie directly into the discovery motion. Although I can’t blame Scruggs from wanting to rise to this particular bait, although I’m not sure what it will accomplish– the brief essentially begins by saying “This isn’t really about an issue before the court right now, except that the Government keeps trying to unreasonably carve down the issues in this case.” I’m not sure how many judges would read beyond the comma in that (paraphrasing) sentence.

What the brief does argue is that Zach Scruggs is seeking the benefit of all three possible exceptions to a time-bar: 1) Cause (the alleged misrepresentation about the 404b evidence) and prejudice (that Zach would not have pled guilty but for that misrepresentation; 2) Actual innocence, because the Government has to show Zach was involved in a bribe and can’t show that; and 2) Jurisdictional defects, because the Government had no evidence (nothing cited in the information) that suggested Zach had taken any affirmative steps to conceal a crime, which is required for the offense.

The prejudice analysis for #1 has one odd aspect: Guess what Zach cites for the proposition that he would not have entered a guilty plea but for the 404(b) proof? Tom Dawson’s book! That’s right, he’s citing the prosecutor’s book for evidence of his own personal state of mind.