THE COURT : All right. The next case on the docket
is U . S . v . David Zachary Scruggs. Who’ s with him? Are they
here? (Pause) Come up, gentlemen. All right. Let’ s get some
order back there. All right. In this case – – it’ s Docket No.
C R192, U . S . v . David Zachary Scruggs.
Mr. Graves, are you ready to proceed on that?
MR . GRAVES : We are, Your Honor.
THE COURT : All right. And who’ s going to be
representing – – Mr. Dawson, you’re representing the Government?
MR . DAWSON : Yes, sir. We are.
THE COURT : All right. Let your client come up,
(Parties complying. )
THE COURT : Mr. Scruggs, on a previous day, you
entered a plea of guilty to the crime of misprision of a
felony. You’re up before the Court now for sentencing. Is
there anything you wish to – – before we get into that, I want
to look at the sentencing guidelines in this case.
Mr. Graves, I got your memorandum yesterday that you sent
in. And you are aware of the guidelines that were set in the
underlying offense at the previous hearing of the Court. You
have filed some comments on those – – some objections to those
guidelines that were set then. Do you want to stand by – – I
read your objections, read the response from the Government.
Do you want to stand by the record as it stands now before the
Court, or do you wish to make any comments on any of those
MR . GRAVES : Your Honor, I ‘ m sorry, there was nothing
new that we hadn’ t argued before in our memorandum. We’ll
stand on the pleadings as filed.
THE COURT : All right. Does the Government agree to
do that also?
MR . DAWSON : Yes, sir. We had thought about, late
yesterday afternoon, filing a response. We discussed it with
counsel, and they assured us that there was nothing new in
their memorandum that they had not already presented to the
probation service. And in view of that representation – – and,
quite frankly, some technical problems with our E C F – – we
decided not to file but just to respond as the Court would
THE COURT : Very well. All right. Then, looking at
the guidelines as computed by the probation office, the Court
finds in this case that the basic offense level is 12, the
specific offense characteristics are 18, bottom four points;
but they’re adjusted down because of the statute to 19 because
in misprision of a felony the offense level can be no more than
19. So the Court finds that is the base offense level.
To give the defendant credit for adjustment of
responsibility, deducts 3 points; so the total offense level in
this case is 16. And the defendant has a criminal history
category of one. So that will be the guidelines in the case.
And that calls for a – – with a total offense level of 16 and a
criminal history category of one, the guideline range of
imprisonment is 21 to 27 months and a fine of 5 ,000 to 50,000.
All right. Now, Mr. Graves, is there anything you wish
to – – well, I ‘ll ask you first, Mr. Scruggs, is there anything
you wish to state prior to sentencing?
THE DEFENDANT : Yes, sir, Your Honor.
THE COURT : All right.
THE DEFENDANT : I am deeply sorry and regretful for
my involvement in this case. I wish that I could go back and
change what happened a year ago. And I should have stopped
what happened, and I should have objected to what happened; and
I didn’ t do that. And that’ s why I ‘ m here today. And I – – for
that, I ‘ m deeply sorry and remorseful. And I ask this Court’ s
forgiveness. And my challenge now is to try to rebuild my
life, Your Honor. Thank you.
THE COURT : All right. Mr. Graves?
MR . GRAVES : Just two short sentences, Your Honor.
The defendant spent a great deal of time discussing this, the
tragedy that this is for him personally, of his own making. He
understands – – he’ s ashamed beyond what I think he can even
express to the Court, and I think – – I would ask the Court to
take into consideration that the main individual in this case
was this defendant’ s father and his mentor. And I think that
that should be something that the Court considers as it thinks
about the sentence.
THE COURT : I usually only hear from one attorney.
Do you want to say anything, Mr. Moore?
MR . MOORE : Judge, the only thing I will say, because
I ‘ve known Zach since he was a little boy, what has occurred in
this case is completely out of character for him. And I ‘ve
counseled with him and worked with him over the last year, and
I can promise the Court that he is very remorseful and very
contrite and ashamed, ashamed of what has occurred.
THE COURT : Okay. Anything the Government wishes to
MR . DAWSON : If it please the Court, consistent with
the plea agreement that we executed sometime ago prior to the
defendant’ s entering a plea to this particular charge, we
agreed that we would recommend to the Court, based on all the
facts and circumstances, that the defendant receive a probated
sentence. We meant that then and we mean that now. And we
submit that to the Court for its consideration.
THE COURT : All right. Well, as counsel and the
Government both know, and as the Court pointed out at the plea,
any pleas for leniency by the Government or anyone else are not
binding on the Court. And the Court primarily is bound by the
sentencing guidelines that are the law, regardless of what any
individuals ask for.
Your case is a sad case, Mr. Scruggs, as your attorney
eloquently stated. The primary actor in this case was your
father. It would not have happened without him. And it makes
it even sadder that you, his son, was brought into it.
The evidence in this case shows that you were fully aware
of this corruption – – attempted corruption of Judge Lackey.
You took that order that Balducci brought up to your law office
that – – the corrupt order that was attempted to be bought from
Judge Lackey. And you made comments on it. You said where
commas should be and what things should be said about it, what
the order should say.
And based on some of those tapes that you – – that were
played at the request of your attorney – – or your father’ s
attorney, Mr. Keker, and which I heard because they were
produced, I just – – it was just clear that you not only knew
what was going on, you were participating in what was going on.
You helped write that order.
You shake your head, Mr. Moore; but I heard the tapes. He
wrote – – he suggested what should be in that order, that
corrupted order. Have you heard that?
MR . MOORE : Judge, I ‘ve listened to every tape,
interviewed every witness.
THE COURT : Well, then, you’ve heard that if you’ve
listened to every tape.
MR . MOORE : I did Judge – –
THE COURT : He commented on it.
MR . MOORE : – – and I hope I get a chance to respond.
THE COURT : Well, you’ve had your chance to respond.
Well, you can respond to that; you can respond to that. Go
MR . MOORE : Thank you, Your Honor. Zach Scruggs
never had any knowledge whatsoever that there was any
conspiracy to bribe a judge in this case. Zach Scruggs, on
March 28th, was at a meeting about a – –
THE COURT : He’ s not being sentenced for conspiracy
to bribe a judge.
MR . MOORE : I understand, Judge.
THE COURT : He’ s being sentenced for misprision of a
felony. But the underlying offense is the corruption of Judge
Lackey. He knew that Judge Lackey was being corrupted, and he
had an order there that he was looking at that was part of – –
that was an order that was being bought from Judge Lackey – – or
being taken – – persuaded – – at the very least, that he – –
you’re saying he knew – – that I know he knew – – was that this
order was the result of a corruption or attempted corruption of
MR . MOORE : Right. Your Honor, I – –
THE COURT : And whether it was for money or whatever
else is really immaterial; it was a corrupt order.
MR . MOORE : The only difference – – and I don’ t want
to offend the Court. But the only difference is, is that the
only thing Zach knew was that Tim Balducci went to have a
conversation with Judge Lackey. He never knew that anybody
conspired to bribe a judge or to do something untoward.
The tape that you’re talking about is a tape that occurred
after Tim Balducci came to the Scruggs Law Firm on November the
1st, wired up, wearing a wire, walked up the stairs, saying he
was there to meet with two individuals, Sid Backstrom and Dick
Zach Scruggs, all the evidence would show, happened to
walk in the room that day. He was never a part of that. And
that’ s the only evidence the Government ever had in this case.
And that may be a distinction without a difference in Your
Honor’ s mind, but it’ s a distinction in Zach’ s mind.
THE COURT : Well, that’ s something you can argue.
Whether or not that’ s true remains open. He hasn’ t pled guilty
to being part of the bribery. And he’ s not being sentenced for
part of the bribery.
You know, when Mr. Backstrom – – who’ s admitted he was part
of the bribe – – and your client are as close as they were,
they’re up there in that office every day talking about
their – – the legal projects of the firm – – and it’ s hard to – –
it’ s kind of a stretch of credulity to believe that Backstrom
never mentioned that money was being sent down to Judge Lackey.
You can claim that; you can argue that. And as far as the law
is concerned, I ‘ m going to base the sentence on that. But
whether or not I believe that is something else.MR . MOORE : One thing I ‘ d say, Judge, is – – and I
know you’ve listened to some of the tapes, but I ‘ve listened to
all of them. And if the Government has a different view, they
can say it. With all of the conversations, hundreds of
conversations, that were wiretapped and taped, there’ s no
mention of Zach Scruggs in this case anywhere. He just – –
THE COURT : I understand all of that. That’ s not
part of this hearing.
What do you say, Mr. Dawson?
MR . DAWSON : I ‘ d have to disagree with that
statement. Mr. Scruggs – – Zach Scruggs is mentioned on some of
THE COURT : That was my recollection also. And
another thing that impressed me negatively about this, frankly,
is that when you, Mr. Scruggs, and Mr. Backstrom were talking
with Mr. Balducci over this order that he had brought to you
before it had been entered by Judge Lackey, it was an order
that you were commenting on how it should read and what it
should say – – and you’ve told me that you have a great respect
and love for the legal field, for the legal profession. And
I ‘ m – – I ‘ m not questioning that.
But you certainly had no great respect for the Circuit
Court of Lafayette County or Judge Lackey, because the tapes
show that you told Mr. Balducci and Mr. Backstrom that we need
to hurry up and get this order signed before some other asshole
gets the case. Now, that’ s a total thumb in your nose at the
Lafayette County Circuit Court. And it contradicts your
statement to the Court that you have a great love and respect
for the legal profession.
Based on these considerations, and based on the sentencing
guidelines that have been furnished the Court, you have no
criminal history. I ‘ m taking into consideration the
Government’ s plea bargain with you. Of course, I told you when
the plea bargain was entered into it was not a binding plea
If, really, the Government and defendants were serious on
something that would bind the Court to a specific sentence, it
would have been an 11( c ) ( 1 ) ( C ) plea agreement like
Mr. Backstrom had which bound the Court.
MR . MOORE : Your Honor, we were informed by the
Government on that matter – – we asked for a binding plea and
the Government – –
THE COURT : You didn’ t get it. You were here when he
entered a plea of guilty. It was not an 11( c ) ( 1 ) ( C ) ; I told
you it was not binding.
MR . MOORE : Judge, we know that. I just – –
THE COURT : Well, all right. Then, if I want you to
say anymore, Mr. Moore, I ‘ll ask for it.
MR . MOORE : Judge, I appreciate that. I thought a
lawyer could always respond to the Court respectfully.
THE COURT : No, you do not. I didn’ t ask you to
respond. I wasn’ t saying anything to you; I was saying it to
MR . MOORE : I apologize if I ‘ve offended the Court in
some way representing my client, Your Honor.
THE COURT : Well, you know, it’ s not – – I ‘ m not going
to argue with you about it, but there’ s no – – this was never an
11( c ) ( 1 ) ( C ) plea agreement.
MR . MOORE : The only response I hope your – – it’ s
okay for me to respond now. The only response I have is we
attempted to do a binding plea, and the Government informed us
that this Court would not accept a binding plea on probation.
And that’ s why we did not do it that way.
THE COURT : Okay. So it was not an 11( c ) ( 1 ) ( C ) .
MR . MOORE : That’ s right, Your Honor.
THE COURT : All right. Then we’re in agreement on
that. But as I was saying, I am giving some weight to the
Government’ s recommendation for leniency. The guidelines are
from 21 to 27 months. Pursuant to the Sentencing Reform Act of
1984, it is the judgment of the Court that the defendant, David
Zachary Scruggs, is hereby committed to the custody of the
Bureau of Prisons to imprisoned for a term of 14 months on
Count 1 of this charge.
Upon release from imprisonment, you’ll be placed on
supervised release for a term of one year. The defendant shall
comply with strict mandatory conditions while he’ s on
supervised release. I ‘ m not going to go over all of those at
this time. The probation officer will go over them with you at
that time. But suffice it to say, Mr. Scruggs, if you violate
any of them, it means that you’ll be back up before the Court
for additional service.
It’ s further ordered that – – the Court has gone below the
guideline range on the imprisonment time. The Court is of the
opinion that the Court should and does hereby depart above the
guideline range to the statutory fine. And the Court has
considered the need for the combined sentence to reflect the
seriousness of the offense and to offset the cost of the
Government for the imprisonment and supervision of the
defendant, which is estimated at $ 2 ,100 a month for
imprisonment and $ 1 ,700 a month for supervision after release.
So the fine in this case will be $250,000.
Now, do you want to report to the institution that’ s
designated for your service on your own?
MR . GRAVES : Yes, Your Honor. We’ d like to ask for a
report and – –
MR . MOORE : Judge, we’ d respectfully ask the Court in
this case – – I believe the August 4th date was set for the
others. This is probably a bit extraordinary for the Court,
but Mr. Scruggs’ s wife is pregnant with their third child. The
child is due in October. I wondered if the Court would show
this defendant mercy enough to allow him to report after his
child is born.
THE COURT : You may file a written motion to that
effect, the Court will consider it.
MR . MOORE : We will, Your Honor. We’ d ask – – an
additional request would be – – the fine is $250,000 – – that he
be given 30 days to pay that fine.
THE COURT : That’ll be granted.
MR . MOORE : Thank you.
THE COURT : All right. So that we’ll have some
record that – – Mr. Scruggs, that you want to report on your
own – – Ms. Morris – – this will be a statement that you agree to
do that and that you will – – and it will not be necessary for
the marshals to take you.
(Parties complying. )
MR . MOORE : Judge, one other request that the other
defendants had – – and we were not prepared to do that today – –
is that we have not given any consideration whatsoever to where
Mr. Scruggs would go. And we know that is strictly up to the
Bureau of Prisons, but we know that the Court’ s recommendation
sometimes carries some weight. Could I include that in our
motion on the time to report due to his wife’ s pregnancy?
Could I include a recommendation for your consideration?
THE COURT : You may include a request for a specific
MR . MOORE : Thank you, sir.
THE COURT : All right. If there’ s nothing else, you
gentlemen may be excused.
MR . GRAVES : Thank you, Your Honor.
MR . DAWSON : Thank you, Your Honor.
THE COURT : All right. The Court’ s going to be in
recess for 15 minutes.
Posted July 2, 2008 – 4:07 pm