Prosecutors filed a response yesterday to the defense motion for a continuance, and this document contains what looks like to me a very strong indication that Tim Balducci did not begin cooperating with investigators until November 1, when he delivered the last $10,000 installment of the alleged $40,000 bribe.
Click here to see a copy of the government’s response. And click here to see a copy of the indictment, so you can follow the play-by-play.
The government’s response says as follows:
On December 17, 2007, the government made available to the defense a September 27, 2007, recording of a conversation between Timothy Balducci and Circuit Judge Henry Lackey, together with videos of Balducci and Judge Lackey on October 18, 2007, and November 1, 2007. Also included in the discovery on that date were surveillance photos from September 27, 2007, and November 1, 2007. Additionally, the government provided to the defense certain documents related to expense transmittals from the Scruggs Katrina Group.
Now, there would be no point at all that I can see to taping a meeting of Judge Lackey and Balducci on November 1 if Balducci had already begun cooperating. As I mulled over the sequence of events listed in the indictment, that meeting on November 1 stuck out like a sore thumb, and I posted about this earlier this week. Why would Balducci bother to deliver the $10,000 if both he and Lackey were wise to the fakeness of the transaction? You will note that, among all the sums mentioned in the indictment, only a final extra $10,000 that Balducci apparently asked for after delivery of the full $40,000 is not mentioned as being delivered to Lackey, and the obvious implication of that is that Balducci was put up to claiming the judge was demanding more money above the original $40,000, so more evidence could be gathered. That last part seems clear, but what of the drop-off of the other $10,000 earlier in the day November 1?
One commenter to my post said the meeting was probably real — the FBI confronted Balducci after it was over and showed him the surveillance tapes, and then sent him to Oxford with a body wire to go talk to Backstrom and the Scruggses. This was a very, very good analysis, but not having any experience "flipping" or "being flipped," I was skeptical: I imagine that if I was confronted like this, I might be too shaken to pull off a good acting job with my co-conspirators, might start muttering to myself about "the damn FBI," or say something stupid like "I can’t believe we thought we could pull this off, we should have known it would never work." Maybe I would start some Nixon-like sweating, or break out in involuntary twitching. Maybe if someone asked me what took me so long to get there I might blurt out defensively "Well, traffic was a bitch and getting busted is a real time-killer too! Just wait and see." I also wondered whether the FBI would care to send Balducci in without more prep time — maybe an encounter session with a few felons from other cases who had flipped, some film room time to watch some "how to" videos, maybe bring in a stress coach, physical therapist or motivational speaker to keep him loose.
But from the description in the government’s new filing, it does indeed appear that is just what they did. This theory is supported by another section of the new filing that talks of evidence of consensual recordings involving Balducci, Backstrom, Dickie Scruggs and Zach Scruggs. Because the indictment mentions Balducci meeting with all three on November 1 after he returned from Lackey’s office, this is a logical time for the consensual recordings to have been made.
Incidentally, that last sentence quote above from the government’s filing talks of expense transmittals from the Scruggs Katrina Group. I assume that refers to the allegations in the indictment that Dickie Scruggs created phony documentation purporting to pay Balducci for jury instructions and jury consulting in an effort to cover up the true purpose of the payments to Balducci. They are alleging he paid out of SKG funds? Whoa! If I was in the SKG and someone used common funds and the name of my organization for alleged bribe money, I would be even more steamed than when I heard about the alleged bribes in the first place.