Here at LBHQ, we were taken aback, to say the least, at the sentence that Judge Neal Biggers in Oxford, Miss. imposed this morning on Zach Scruggs, son of Dickie, who last week was sentenced to five years.
We reached out to a couple of white-collar defense types, Dan Gitner and Peter Henning, who shared our sentiment. But they also gave some context to understanding the judge’s possible thinking.
Offense at the Crime
Dan Gitner, defense lawyer and former federal prosecutor in NYC, notes that Zack is young, and “his role was obviously minor.” Plus, “usually judges take very seriously the recommendations of U.S. attorneys” because they realize that generally “the U.S. attorney has more connection to the case than the court,” having interviewed witnesses and spent time with the case.
So why such a stiff sentence?
First, Gitner notes, Scruggs pleaded to what’s actually a serious crime, “misprision,” the elements of which (and he checked the books on this one) include not only knowledge of a felony but also that the defendant “conceals and does not as soon as possible make known the same.”
Perhaps more important: “It seems to me that this was a judge .. who was quite offended by the notion of this case, in which lawyers were corrupting the legal system.”
“The system takes itself very seriously and rightly so,” says Gitner. “Whenever lawyers corrupt the system I think there’s a perceived need to deter that from happening again. It’s almost like the court itself is the victim.”
Henning, of the White-Collar Crime Prof blog who’s been following the case closely, also said the facts of this whole case seemed “deeply offensive to the judge,” an observation he made based on the judge’s comments at Dickie’s sentencing last week. Still, Henning also was surprised at the length of the term. Misprision cases, which he says are rare, are generally considered “a way to plead a case out and get a shorter term.”
Can Zack Appeal?
Can Zack appeal? Both men give the same assessment: technically yes, but odds of success are extremely unlikely, given that judges have substantial discretion.
And what of the point, made by the defense, that Zach did not plead to being part of the original conspiracy and yet the judge today called him a participant?
“The judge can make an assessment of the facts for determining the sentence,” Henning says. That is allowed even if Zack didn’t plead to participating. The judge is supposed to look at the “defendant and entire situation.”
WSJ Law Blog