By Patsy R. Brumfield / Daily Journal
NOTE: Sorry for the late post of courtroom action Tuesday, but some error occurred with my ability to get to the Internet. For the still-curious, here’s what the testimony was:
OXFORD – Testimony wrapped up Tuesday in Richard “Dickie” Scruggs’ push to get his 2009 judicial bribery conviction set aside.
Senior Judge Glen H. Davidson presided over a hearing that could shorten Scruggs’ prison time on two such cases.
In this one, he pleaded guilty in 2009 to improperly influencing then-Hinds Circuit Judge Bobby DeLaughter, who presided over a legal-fees lawsuit against him. But after a 2010 Supreme Court decision, Scruggs’ attorneys insist he pleaded guilty to a crime that no longer exists.
Prosecutors insist Scruggs offered to assist DeLaughter in his quest for a federal judgeship, which was a “tangible” bribe despite the fact that Scruggs’ brother-in-law, then-Sen. Trent Lott, never intended to do more than make a courtesy call to the judge about the process.
Today’s hearing is the second day in which Scruggs must prove to Davidson that he is innocent of the crime.
(Below is a running account of courtroom action. Please excuse the typos and glitches likely as I type as fast as I can.)
• • •
1:30 – Davidson returns to courtroom. Joey Langston, former Booneville attorney, continues questioning on the stand. Prosecutor Robert Norman resumes his cross-examination. Scruggs’ attorney, Michael Moore, will handle any re-direct questions to Langston, when Norman is done.
(NORMAN – Back to where we were … maybe I digress… but defense counsel asked you to point where judge ruled contrary to law… you said couldn’t find one. Can we agree that DeL could shade rulings toward Scruggs, on pts of law, findings of fact – in favor of DS and still rule in manner not inconsistent to matters of law?) He could. (Was it done?) Uhm, particular ruling? (Rejecting R&Rs that give Wilson 40% of fees, when Sneed thought it was appropriate settlement? Also, qualification order, can we agree when DeL said zero funds due and owed?) He could have said that. But we were satisfied on any settlements DS owed money, it had already been paid. So, when ruling was Zero additional money … I recall that … that the reason it wasn’t a number other than Zero was we felt we had satisfied all of the settlements that were in question. As far as the … quantification and one other …?
(Recognize this transcript?) I do. (Pg 22 – read question … about Peters to judge… say you can shade the law ….shape the facts … your answer?) No question, it can be done. I think I just said it could be done. (Describe discussions with DS about dangling judgeship in front … put in your own words … with DS?) Uhm, I don’t remember specific content of conversations… but as best I can remember, way it came to us, not from us to them. WE didn’t go there. It was the other way, uhm, either DeL through Peters or Ptterson, that he was interested. In conversationswith Dick about that … (Did he say he’d support DeL aobut that?) Yes. (Did he say he’s approach Lott?) At some point. (Did he say he’d get DeL “on the list” of judges for consideration?) Generally, yes. Obviously, if someone wanted to be consdiered, they’d have to be on someone’s radar. (Let’s go back to grand jury testimony, Pg 26 – question… what was DS reaction that DeL wanted to be consdiered?) He told me unequivocally that he would support DeL’s interest in judgeships and would approach Lott about getting DeL on the list of judges for consideration.
That’s what I said, how I almost always would describe it.
(Was it important to you and DS team, that DeL believe you were supporting him in quest for judgeship?) Yes (How important?) I considered that if it was important enough for him to apprach us, I wanted him to know it was important to us. Yes, that’s what we said. We wanted him to know. (Everyone in this case knows… to be federal judge, must get OK of senator, Senate and president?) Yes. (But first must get call from senator?) Yes. (But to make it believable, was it possible if DS was against it?) Believed he could make it more difficult, if didn’t like someone. (So, your answer is yes?) Yes.
(Did you make sure that word got back to DeL by Peters that DS and team supported his quest?) I did. (Was it generally believed, in Team Scruggs camp that if DeL knew DS was supporting his quest for judgeship, could help you get rulings you needed in Wilson case?) Yes, we felt like if we said no to his request, that would hurt you. If did nothing, would hurt with DeL. But if said would support, would help with good will, help Peters argue our points of law. (But, believed it would help with rulings?) Yes, I do.
(When came to quantification order, you got advanced copy of last page, showing Zero due. By way ot Peters?) Yes. (Told you what you needed to know – to object or not?) Here’s way it works … motin is filed and there is time response is due, answer or object. Before we knew, we answered it. Later, Peters came up with page of order and we had already answered. (But still discussing about objection?) We were.
(Once quant order entered, Zero funds, I call that a win for DS? He did?) Yes. (But problem, it wasn’t supported …..?) Concern that wasn’t enough expert testimony in record to support what we consdiered to be correct position, Zero. Concerned not enough expert testimony in record. (So court could ask how ame up>) Possibly. (Then to settlement conference, had benefit of Wilson’s secret settlement figures?) Yes, as we discussed begore. there had been a previous motion hearing set in Raymond courthouse. Court asked both sides to submit settlement figures in confidence. We submitted ours, they theirs. Judge said so far apart, he didn’t see settlement likely. Later, Peters told us what numbers were for other side. So far outside our range, …. but interesting to know, though perhaps not helpful. (Wasn’t useful? Ever had that knowledge before?) No.
(You pleaded to conspiring with DS to influence judge?) Yes.
MIKE MOORE – re-direct … just a few questions.
(Let’s start with that last question … pled guilty several years ago?) Yes. (But law on $666 that went with your case, that courts have now ruled in Whitfield case, that you pled to… your judge is no longer viable?) For me wasn’t case. It came out after I pled. It would be up to a court to decide if it’s still viable. (Agree with me … since DS pleaded guilty, US Supreme Court decision on honest services fraud in Skilling – why we’re here today – and law has changed now … now they have to prove a bribe in this case?) Yes, generally familiar with Skilling. Esoteric points of law, not so familiar. I followed Whitfield, Minor line of cases. Casually followed Skiling.
(My question – you pled to .. what law was?) Yes. (By comparison, DS pled when law was?) Yes. (Law has changed in both circumstances, arguably?) Yes. (Norman asked you … about nothing wrong with ex parte conversations … read state statute. You didn’t plead to that?) No. (You pled to 666?) Yes. (In this case, two aspects – unethical, aggregious, bad ugly exparte contacts of Peters with judge. All agree wrong?) Yes. (Are you familiar with Eaton v. Frisby in Hinds County?) Only what read about it? (Exhibit in record about Frisby case … this is order signed by Judge Yerger Dec. 22, 2010. Comparable case to this, unethical ex parte by Peters with DeL …. investigated by US Atty’s office and FBI. Pg 10… Yerger concludes … says misconduct should be punished, should fit the crime … court faced with fraud on the court…. so judicial machinery cannot perform in its usual manner. (DAVIDSON – This wasn’t covered in cross.) (MOORE – This is relevant.) DAVIDSON – OBJECTION SUSTAINED
(MOORE – Question about unequivocally… you said DS said he’d unequivocally support DeL? Does it mean so long as DeL rules in our favor?) No, we expected the support to generate good will and we felt like we couldn’t say no or nothing, but if we said yes, hopefully …. (Idea that there’s an order that’s shaded in your way? Do you knwo of one?) No, I’m telling you that … my job was to coordinate pre-trial prep … a lot of time, lawyers do research and work briefing various issues, repsonding to motions … to get to numbers. I can’t pick out order that’s shaded in our favor. Think I was asked about quant order … I explained about our paying all along the way, had narrowed the issues on various settlements to those we felt we could prove we didn’t owe. I thought he asked me about another one – maybe the order about “existing” settlements… I don’t think that was it. It was an existing order that went back to 2002, well before I or Peters was hired. I don’t think they were shaded in our favor. We certainly sought his good will. We wanted him to .. uhm, rule in our favor.
(Clear something up on quant order … seems that you got a copy of order from DeL that Zeros out the case … is it not true that your side submitted your view… ?) Procedurally, we filed response. He issued order. He did have … Peters gave us advance copy of last page of order, knew before it was published.
2:00 – Langston testimony completed.
CHIP ROBERTSON – Spoke with Norman about these (exhibits) … Norman says he has no objection.
Robertson – offers smaller copies of time line, other documents. Includes info about judicial nominations during the relevant period. We want to get it in the record. (No objection from Norman.) We have proffer from Mr. Little, a prelude to say we’re about to rest. But like to leave it open for him to review the proffer.
DAVIDSON – We will take up matter of proffer out of time.
NORMAN – One witness…. DAVIDSON – LET’S TAKE 15 MINUTE BREAK.
• • •
2:20 – Davidson returns to courtroom.
NORMAN – CALL TIM BALDUCCI
Balducci sworn in. Live in Monroe County, MS
(Norman – Tell us briefly about your background.) Undergrad, Ole Miss law school 1991. Practice with Langston, opened firm in Oxford, went through various entities, ultimately went back to work for Langston until time I was arrested.
(Remember what day it was, confronted by FBI?) No sir. (Remember calling a couple of days later?) Yes. About early, Saturday morning. (Wanted to meet?) I did/ (Why?) Been de-briefed by FBI, during course they asked me about case with Lackey and asked if been involved with anything like that before. I told them no. Later, decided should come clean – case involving Judge DeLaughter. (USA knew nothing?) Appears so.
(Second time went to work for Langston?) Maybe 2002. Worked on Wilson v. Scruggs and Lackey v. Scruggs. In… Luckey, federal court. Wilson case in Hinds County. (July 2005 – did Langston firm take lead in Wilson?) Yes. (What were you doing on ground in support ot its lead?) Sort of directing day to day strategy of case. (What was your relationship with Patterson?) At time, we were co-workers. Both emplyed at Langston firm.
(Suggested that Peters would be asset to Scruggs team?) Yes. (Did Patterson set up meeting with Peters?) Was a meeting, not sure of details. Flew to Jackson and was a meeting. I didn’t meet with him. Joey and Steve met with him. I was seated in the lobby. (Did Langston pay Peters $50K?) Couple of days prior, talk about engaging Peters with $50K cash. Joey asked if I had the money. I said I did, gave it to him. Wrapped it in FedEx envelope wrapped in double rubber bands. Flew to Jackson, Joey had envelope. When got to FBO, they met, Peters had envelope. (Understand what was going on?) No. (Back to Booneville, when first realized what Peters’ real role was?) They originally told me he was off-books consultant because of relationship with DeL – somebody useful to get insight on judge’s temperature. That’s what I was told originally.
(Peters did not enter an appearance?) No. (Scheduling, a hot issue in 2006?) Case had been continued and DeL was going to enter scheduling order. Made a BIG DEAL, said case going on so long, he didn’t believe anybody could agree. So he said he would enter the order and gie both sides opportunity to ask for revisions. How we left it. After that, Joey ame and said I’d like you to draft a memo that would include matters, if we would do schedulign order, what we would want? I asked him what wanted? Said he wanted to get a feel about how long would take to prepare. Wanted clear look at field ahead for Scruggs. Shortly after they came back, he said, take what did and put in actual format of scheduling order and give it to him. I did. Gave it to Joey. Couple of days later, we received the atual order from court. It was not in same format but it was identical to one I had prepared, in terms of what included and dates.
(Light came on?) Yes, something going on. (What believed?) Put 2 and 2 togehter – that work I did made its way to court. Figured created a channel through Ed Peters. (Confirmed it?) With Patterson – saID I THINK THIS IS HAPPENING. (Came time you sent pleadings directly to Peters?) Yes. (REturn from him?) Handwritten notes, suggestions, revisions. (As case progressed, did everyone drop the charade and talk directly with Peters about it?) Yes. (Did he ever say what judge thought?) Yes. (Did he say Bobby this and Bobby that?) Yes.
(Recall Sneed in Jan. 2006?) Generally, I do. (His R&R would give Wilson 40% after contract, sounds correct?) Yes. (Would mean money to DS?) Yes, several millon. (DeL rejected it?) Yes. (Some discussion about whether that was law int he case, referring to 2002 report and recommendaiton?) I don’t remember all that.
(What really sticks in your mind as turning the tide in spring 2006… anything.. order by DeL that was particularly significant?) Not sure of date, there was a motion filed for quantification…three different motions. What they asserted Wilson was entitled to under 1992 agreement. They asked court… for court methodology to calculate. Plaintiffs said know it’s just a function of math and, judge, we want you to make that determination. (How did order strike you?) In beginning, really set back by it. None of had experienced anything like that before. A lot of discussion about it. Strategy about it. (What were your alternatives?) Discussed tht it wasn’t a proper motion. Essentially they asked court to be trier of fact on that narrow issue without full-blown bench file. (Did realize possible opporrunity?) Yes. (Reject or embrace it?) eNeeded ot know what DeL thought. (How it happened?) Issue went to DeL from Peters.
(Get any assurances from Peters?) Said he were going to win. (At first, assurances?) First, verbal. (Did you file response?) We did. (Still discussion about objection?) Yep. (Before DeL entered quant order…did you get an advance copy of his ruling?) We got copy of final page of report… unsigned by judge, but it included zeroes in columns where entitltement to Wilson would be. (Doesn’t mean Ds owed Wilson Zero, just additional money?) Correct. Net result, no new money.
(Was that a win or did it matter?) It was a win. (Could have gone the other way?) Yes. (Meant millions?) Yes sir. (Big win, everybody happy?) Problem, it went a little too far. Plaintiffs submitted motion … court either say yes you’re right, or quantify amount owed … or no, you’re wrong and I’m not going to awardyou that money. But this order said, not going to award money, in fact going to say nothing is owed, basedon what DS has already paid. (Did DS team support your position about filings?) They did not.
(What was over-arching strategy throughout case? Trying to get DeL to rule contrary to law?) Opposite. Goal was to reduce case against DS to what he considered a manageable amount of exposure, but to preserve the record on appeals. (Didn’t require him to rule contrary to law?) No. Wouldn’t have gotten finality Mr. Scruggs wanted.
(Now had win, did settlement become more important?) It did. (Settlement reached?) Yes. (Did DS have benefit of Wilson’s confidential agreement?) Yes. (Ever see taht before?) NO sir. (Did Wilson ask DeL to reconsider quant order?) He issued order denying motion to reconsider. (Discussion?) None.
((What was your understanding that DeL would get to allow himself to be corrupted?) Get his name on a list for federal judgeship. Privy to numerous conversations. (Include Mr. Scruggs?) Discussions, wehre I remember… I never had personal discussion with DS about this. I was down here, all that was way above my head. Langston, Patterson handling that. (Present where discussed and DS there?) Yes. (Late in cse, Spring 2006, recall Jxn airport – Peters said problem?) Meeting, me, Patterson with Peters. Said DeL was frustrated or nervous that he’d been passed over on recent judicial appointment. Concerned that he was doing his part of bargain and that DS would not fulfill his part of the deal. (Recall who was present for that?) Me, Peters, Patterson. Sure Patterson there. Remember specific conversation. Conference Room of FBO. Remember Patterson kind of bucking up … saying in half-joking way, he might screw him over. Remember thinking, he said what I was thinking, Remember very clearly.
(Was DeL letting punitive damages hang?) Yes. Don’t know significance. Coincidence or gamesmanship. But DS team feeling he was holding back as a chip in the process until he was satisfied hewas submitted for nomination. (Before or after at airport and Peters said felt he might be backing out… when learn that Lott called DeL?) After that. (How long?) I don’t remember. (One lst genearl quetion or two: In your view as experience atty, did DS have a good case?) He had a defensible case. (Why corrupt judge?) ROBERTSON – OBJECT, CAN’T KNOW WHAT WAS IN HIS MIND? DAVIDSON – THAT’S TRUE. I’LL LET HIM ANSWER AS OT WHAT HIS OPINON WAS.
BALDUCCI – In my opinion he wanted certainty of outcome.
2:45 – ROBERTSON
(How areyou Mr. Balducci?) Sick and tired, Mr. Robertson. (I want to go to end of testimony … your deposition, recall when came to your prison and took deposition?) Yes. (You discussed some of these things?) Yes sir. (Shows him copy of transcript – disussed with Norman about when DeL said he was pretty sure DS would not fulfill his part of agreement. Let’s put a date on it?) No, don’t.
(Let’s read along deposition, you say about Jxn airport…. DeL had been passed over? Correct?) That’s what it says. (Only time he could have been pased over was for opening already filled? Judge Lee Spril 2006 opening? You say phone call came after/) Yes.
(Lott says call March 2006. So what you say can’t be true?) I can’t remember dates. I can’t give you specific, best as I can recall. (But you gave specific event that triggered DeL’s concern. That passing over could not have occured until Apri 2006?) I’m not going to dispute what you have there. But I know what conversation was and that he was concerned that DS wouldn’t fulfill. (Because he’d been passed over?) That’s dorrect. maybe I didn’t use precise enough testimony.
(You’ve been udner oath several times… in grand jury, yousaid Zach agreed to pay $10K to Lackey, you said under oath that wasn’t exactly correctbefore Judge Biggers?) I don’t recall that. (That’s the problem.) These events happened six years ago. A lot has happened to me in past six years. I have tried very hard to put all this behind me. I don’t think about it, I don’t dwell on it. I don’t want to be here. I’ve moved past it. All I want is for this to be over. Forgive me if myu recollection isn’t as sharp as it could be. People are in jail for what they did, not because of my words.
(Now, Balducci, you testified under oath in S.C. deposition that you don’the personal knowledge of much … still say that?) Never spoke with DeL. (Not personal knowledge,stand by that?) That I’ve never spoke to DeL about this.
(Scheduling order – said that was your firwst inkling something was amiss?) Right. (You went to scheduling hearing?) Yes. (Transcript says you and Langston are co-counsels in this.) All happened close to same time. (Hearing Jan. 2006 did you hear DeL say it was radical departure from law in the case?) Don’t remember.
(Sked order Jan. 2006 – before Feb. 2006?) Yes. (Your testimony that sked order was product of Peters’ influence with judge?) Yes. (Well before talk of judgeship came up?) I don’t know. (Deposition – you said reason brought you into meeting is they needed to know something. Did you know about May 2002, Sneed’s R&R?) Sure I did. (Knew his report says existing settlement means those in existence at the time?) Know it means that. (That DeL accepted it?) Don’t remember, no sir.
(When this Jan. 9 report and DeL said in your presence that it was radical departure, would it surprise you that he said it was a radical departure, against what he ruled in 2002. Surprise you?) Not necessarily. (You said DeL rulings consistent with 2006?) Yes. I think they were consistent. (If if followed… were they consistent all the way through?) Yes, I guess it’s true. (In deposition you said consistent.) (Let’s talk about quant order – aware Funderburg talked to DeL law clerk Lee Turner about quant order?) ABout what? Don’t remember that.
(Turner said DeL didn’t think much of quant order. Basically what you said Peters told y’all after conversation with DeL?) Correct?) No …. (What did Peters say to you?) My recolleciotn is Peters told us not to object on procedural grounds, to file pleading on the merits. That everything will come out OK. (Did Peters ever say to file it?) That’s correct. I’m not certain he told me, directly. I say our defense team. Don’t know who he relayedthat message with. (So you didn’t have that conversation?) I don’t recall if I was present during that.
(Did Funderburg work on that?) He did. (You did editing?) I don’t remember if I did. (STeve helped with a lot of the drafting. I know everything was filed throughout office but who did majority of work, I’m not certain. (June 12, 2006 filed?) Don’t dispute that. (When order came out, you said worried it had gone too far? Aware that your expert report was already before the court on motion to strike?) Aware had some information with other fililngs. Attached as exhibits to another motion but the oncern fro a procedural standpoint hadn’t submitted affidavits or depositions. All we had were raw numbers. (But report already before court and ruled same day? So courthad before it Scruggsteam report to support quant report?) Court filed a copy of expert report that if we were doing our work properly, we would have attached it to response with affidavit from accountants. If that’s where we were going. (But already there with another motion?) I don’t remember. Whatever court file says.
(Did Wilson team try to speak with you about quant report?) Yes, they did. (Effect/) Seems like day or trial, something happened at Supreme Court. I don’t remember what it was. (Supreme Court said we’re going to review this.) Either Supreme Court wouldn’t hear it or we settled and made it moot. (Timeline … one question on deposition… you said, it was the worst thing I’ve ever done, but I did it. Yopu remember? You think that’s worse than bribing a judge?) I meant generic, that deep down in mud was worst thing I’ve ever done. (You bribed Lackey, then tried to bribe him again?) I’ve done a lot, been man enough to take my punishment, pay my debt, served my time.
(We’ve got another man who’s serving time unjustly – OBJECTION – No further questions.)
3:03 – NORMAN re-direct
(Picks up chart … Defense atty asked you about nomination to take Judge Lee’s seat… a little after month Lott called Del?) Yes. (Anything unusual about nominations to get out onto the street?) No.
Norman – that’s all we have, your honor. Do have matter of proffer still hanging.
MOORE – On proffer, it’s ours. Under rules we’re allwoed to make one. Sent copy to Larry Little. He’s lawyer for Judge Delaughter. I don’t know what else one would do.
NORMAN – Conversaton with Larry during lunch hour. Best I can relate, Little indicated that on behalf DeL, don’t consider proffer accurate. But Little said that unless court ofders otherwise, will not put DeL on stand for that purpose.
MOORE – Now, we wanted him to testify truthfully …now govt says it’s not true.
DAVIDSON – We’ve finished al the proof. Prooffer has been sent to Mr. Gurkin. Suggest we recess for sole purpose of taking up proffer. After Gurkin oices objeciton, govt voices objection we can file or not. File as part of record.
NORMAN – Flip side is that this will give htem blank check to say what want to say. No objection as just part of record.
DAVIDSON – I suggest your read what Gurkin has to say first before such a pronouncement.
ROBERTSON – Your honor, everything in proffer either said to three or us on phone or in 302s. If lawyers say he didn’t say those things, I’m willing to talk to Jduge DeL… we want you to understand that his statement … accusation is not what we saidyesterday … not made up, It’s befoe the court already or heard from the lips of Judge Del.
DAVIDSON – Proffer will take up, in written form in next few days. Wouldbe more helpful to the court to give you about 10 ays or whatever is reasonable to supplement your pre-hearing submissions based on what’s been testified to.
ROBERTSON – We’ll do what’s directed.
DAVIDSON – Will be helpful to me to submit written submissions. Way I always handle these.
ROBERTSON – We will happily do that.
DAVIDSON – Want you to make those submissions simultaneously. How much time you want?
ROBERTSON – 10 days, two weeks.
DAVIDSON – Two weeks form this day. 14 calendar days.
ROBERTSON – One last note … ifyou decide to show cause … we’d like to supplement on jurisdicitonal issues.
DAVIDSON – Written submissions, I’m carrying jurisdictional issues. Let me hear about this DeL proffer.
ROBERTSON – We will wait to hear from Gurkin. If not, will submit it to you.
DAVIDSON – I’ll clarify that we’ll take it above their objections, if can’t resoilve these matters.