Yesterday in the Scruggs criminal case in Mississippi, the government filed its response to a December 28 defense motion to compel the government to provide certain evidence in discovery. That defense motion can be seen by clicking here, and we will get back to talking about it shortly.
Here is a copy of the government’s response. Now, taking these documents together, a couple things emerge.
On November 27, the day the FBI raided the Scruggs Law Firm, Steve Patterson was placed into custody. The defense motion requests "[A]ny recording of the November 27, 2007 telephone conversation between Balducci and Patterson that occurred while Patterson was in custody, or any written record containing the substance of this conversation." So Balducci, presumably cooperating with the FBI, spoke with Patterson the day of the raid. What was said we don’t know, and the government response says "No recording or written record of the conversation was made."
The defense motion also asked for any written, recorded or oral statements made on or about November 27 by Patterson. There must be some, because the government response says "The government has provided these statements to the defense in the form of an FBI 302 of the interview." (An FBI 302, as you can guess from the context, is a report of an interview with a witness by FBI agents).
The defense motion further requested any statements made on or about November 27 by Sid Backstrom. Again, there must be some, because the government response says these have already been provided. A word of caution is in order — a statement does not necessarily mean someone spilled his guts. Conceivably, it could consist of a witness criticizing an agent’s clothes, or otherwise saying little to nothing.
The defense motion asks for any record of statements made by Tim Balducci. According to the government response, it does not need to produce statements made by alleged co-conspirators, and the government will not produce Balducci statements it has not already previously handed over. Presumably, those handed over are the wiretap and other recordings in which Balducci’s voice appears.
In addition, the defense motion asks for grand jury material, but the government response says it is not required to turn over grand jury testimony until after a witness has testified at trial.
Perhaps it is best, to try to make sense of all this the best we can, to take these two documents and the indictiment (click here to see a copy of the indictment) and form a timeline so we can see what is alleged and known, and in that way, see more clearly what we do not know. I’ve compiled such a timeline below. The date and source for the information is given in bold. Anything from the indictment should be considered an allegation and not a statement of fact indicating guilt.
- March 15-28. Dickie Scruggs, Zach Scruggs, Backstrom, Balducci and Patterson allegedly met at the Scruggs Law Firm in Oxford to discuss how to influence the outcome of the Jones v. Scruggs lawsuit. Indictment.
- March 28. Balducci placed a call to Judge Henry Lackey asking to meet with him later that day. Indictment.
- March 28. Balducci traveled to Calhoun County to meet with Lackey to make an overture on behalf of the co-conspirators about the Jones lawsuit. Indictment.
- May 3. Balducci had a telephone conversation with Lackey where Balducci said "they had changed their strategy" and would rely on a motion to compel arbitration rather than a summary judgment. Indictment.
- May 4. Backstrom e-mailed a proposed order compelling arbitration to Balducci, who faxed the proposed order to Lackey. Indictment.
- May 9. Balducci has a conversation with Lackey at Lackey’s chambers. This is the now famous "there are bodies buried that . . . he [Dickie Scruggs] and I know where" conversation, in which Balducci also tells the judge that if he is inclined to rule in their favor, "everything will be good." Indictment.
- May 9-September 21. Balducci has several meetings with Lackey. Indictment. May 9 and September 21 meetings between Balducci and Lackey were taped via video and audio. Defense motion. It is logical for us to assume that any other meetings between the two were also recorded.
- September 21. At a meeting with Lackey, Balducci agreed to pay Lackey $40,000 cash on behalf of Dickie Scruggs and the Scruggs Law Firm for a favorable order. Indictment. Immediately after the Lackey meeting, Balducci placed a four-minute call to the Scruggs firm and discussed the bribery transaction with Backstrom. Indictment.
- September 25. FBI Special Agent William P. Delaney makes an application for a Title III wiretap. Government response.
- September 26. A call made from Balducci’s phone at 10:11 p.m. is recorded. Defense motion. The recording of the call ended abruptly because Balducci was talking to his father about unrelated matters and the government did not record this. Government response.
- September 27. Patterson had a conversation with Balducci discussing the bribe. Balducci delivered $20,000 in cash to Lackey in the judge’s chambers, then traveled to the Scruggs firm in Oxford. Balducci had a phone conversation with Patterson where Balducci said "All is done, all is handled and all is well." Indictment. A call was made from Balducci’s phone at 8:36 a.m. This was recorded. Defense motion. The call broke up abruptly because Balducci lost cell phone service. Government response.
- September 28. A call is made from Balducci’s phone at 5:03 p.m. Recorded. Defense motion. The call ended abruptly when Balducci lost cell phone service. Government response.
- September 29. A call is made from Balducci’s phone at 4:56 p.m. Recorded. Defense motion. The government stopped recording apparently when they realized the subject of the conversation was not related to the alleged scheme. Government response.
- October 2. A call is made from Balducci’s phone at 5:31 p.m. Recorded. Defense motion. The government stopped recording when it became clear Balducci was talking to an associate at his firm about an unrelated matter — how to repair a gas leak to the associate’s hot water heater. Government response.
- October 4. A call is made from Balducci’s phone at 2:50 p.m. Recorded. Balducci and Lackey talked by phone at 3:49 p.m. This was recorded. Defense motion. The government stopped recording the earlier call when it became clear Balducci was talking to someone about a political campaign. Government response.
- October 16. Balducci and Lackey talked by phone at 7:26 p.m. This was recorded. Defense motion.
- October 18. Patterson called Balducci and wanted to know what was going on with the order. Patterson said he talked to Dickie Scruggs about 15 times and Balducci needed to call Scruggs. Balducci delivered $10,000 in cash to Lackey in his chambers. Dickie Scruggs called Patterson and they discussed "Tim" coming to the Scruggs Firm when he left the judge’s chambers. He was to bring the order, put it on Dickie Scruggs’ desk and pick up a "package." Dickie Scruggs prepared a $40,000 check for Balducci and false documentation to cover up the true reason for the payment. Balducci delivered the order [apparently signed by the judge] to Zach Scruggs and picked up the false documentation. Balducci then called Backstrom and told him he had delivered a copy of "those papers that we’ve been waiting on." Indictment. Lackey’s secretary called Balducci at 11:16 a.m. to say Lackey was running late at the doctor’s office and would call Balducci later. Recorded. Government response. Balducci and Lackey talked at 1:18 p.m. This was also recorded. A recording was made from Patterson’s phone at 4:21 p.m. Defense motion.
- October 19. A recording was made from Patterson’s phone at 10:35 a.m. and another at 10:39 a.m. Defense motion.
- October 24. Government applies for an extension of the wiretap. Government response.
- November 1. Balducci delivered another $10,000 in cash to Lackey and obtained an amended order. Balducci discussed the amended order with Zach Scruggs and Backstrom, saying "we paid for this ruling, let’s be sure it says what we want it to say." Also that day, Balducci talked to Dickie Scruggs and Scruggs agreed to take care of an extra $10,000 payment to the judge and said he would "hire" Balducci in an unrelated case to prepare jury instructions to cover up the $10,000 payment. Indictment. Balducci made a consensual recording of a conversation. It is 90 minutes long and involves the other four alleged conspirators. Defense motion.
- November 3. A recording was made from Patterson’s phone at 11:10 a.m. Defense motion. The government stopped recording when agents realized Patterson was talking to an employee about unrelated litigation. Government response.
- November 4. A recording was made from Patterson’s phone at 8:40 p.m. Defense motion. The government stopped recording when agents realized Patterson was talking to an employee about unrelated litigation. Government response.
- November 5. Dickie Scruggs sent an e-mail to Balducci forwarding the false documentation to cover up the extra $10,000 payment. Balducci drove to Oxford and took hand delivery of the $10,000 check and false documentation. Indictment.
- November 13. Backstrom and Balducci had a phone conversation where they discussed the bribery scheme. Indictment.
- November 27. Scruggs Law Firm raided. Patterson is taken into custody and makes some kind of statement to FBI agents. Balducci and Patterson hold a telephone conversation, of which no recording or written record was made. Backstrom makes some kind of statement to FBI agents. Government response.
- November 28. Indictment served on Dickie and Zach Scruggs, Backstrom, Patterson and Balducci.
- December 5. Balducci pleads guilty. Click here for a post I wrote about this.
- December 10. FBI raids Joey Langston’s law office.
A few more things. We know from Lackey’s interview with the Wall Street Journal a few days after the indictment that he went to the FBI shortly after Balducci first approached him. We know the Balducci-Lackey meetings were recorded with audio and video equipment. We also know from the government response that Lackey made his own recordings of telephone conversations with Balducci, except for the October 18 call at 11:16 a.m. because his secretary, not Lackey, made the call.
Now, what we can see from this timeline is that the government was recording calls between Lackey and Balducci, with the judge’s permission, from shortly after Balducci’s first approach to the judge. The audio and video recordings appear to have begun with Balducci’s first meeting at the judge’s chambers. Merely because a specific meeting is not mentioned as being recorded does not mean it wasn’t, it just isn’t stated in either the defense motion or the government response.
The government did not try to get a wiretap until September 25 — I wonder why they waited so long? It becomes apparent that Balducci, as many have speculated, was not cooperating with the FBI until after his November 1 meeting with Lackey. We know he was cooperating later in the day on November 1, because he made a consensual recording of conversations with the other defendants. He does not appear to have been cooperating earlier, because there would be no purpose in videotaping the hand-off of the money earlier on November 1 if Balducci were already cooperating, unless some third person was in the room, and we have no evidence to indicate anyone else was there. Likewise, the alleged October 18 delivery of money also would make no sense if he were cooperating. We also know the government was recording Balducci’s calls without his permission as late as October 4, when agents stopped recording a call because it was not related to the investigation.
It is apparent from this timeline that I was right earlier when I suggested the "extra" $10,000 to be obtained for Lackey on November 1 was made up by prosecutors to get more evidence against Dickie Scruggs. The documentation mentioned in the indictment must have been gathered with Balducci’s permission after November 1, and it appears all to be of the type that he would have in his possession. The FBI would not have had much time between the Scruggs law office raid and when the indictment was issued to the next day to analyze documents, paper or electronic, from the Scruggs firm.
Another thing stands out. There is no indication from any of this that phones were tapped at the Scruggs office, or that anyone connected with that office had their cell phones intercepted. If this is true, I wonder why. There is also no indication that any kind of listening device was planted in the Scruggs office, or that any "insider" existed, besides Balducci. The absence of evidence does not necessarily equal evidence of absence, of course.
You readers, I’m sure, will have other things to add that I have overlooked either in these documents or in other things on file in this case. Let’s view this timeline as a continuing project that we all work on together.