Federal Criminal Defense Blog : Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

As set forth in the official DOJ Blog yesterday, Deputy Attorney General David W. Ogden issued three Memorandum to DOJ prosecutors no doubt intended to remedy some of the setbacks the Department suffered last year as a result of discovery violations. The subject of one of the Memos is “Guidance for Prosecutors Regarding Criminal Discovery.” The second Memo reference is “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group.” Finally, a separate Memo is address to all DOJ litigating components and all U.S. Attorneys.

Taking the "Memo to the U.S. Attorneys and DOJ Components" first, Odgen summarizes that he had convened a working group to address DOJ policies and practices regarding criminal discovery issues. Odgen references that he is sending to all DOJ trial attorneys and AUSAs a memo containing Guidance For Prosecutors Regarding Criminal Discovery that prosecutors should follow to ensure that discovery obligations are met in all future cases. Interestingly, Odgen directs that each U.S. Attorney’s Office develop a discovery policy consistent with the law and local rules and practices. That policy must be in place by March 31, 2010.

The “Guidance For Prosecutors Regarding Criminal Discovery” Memo sets out detailed steps prosecutors are to follow regarding discovery. The six page Memo first advises that the prosecutors must determine who is a member of the “Prosecution Team” for the purpose of determining what documents must be reviewed for disclosure.

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.

The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

The Guidance Memo reminds prosecutors that discovery within DOJ is covered by the U.S. Attorney’s Manual Section 9-5.001, which is broader than what the law requires and that if a prosecutor chooses to follow that broader course, “defense counsel should be reminded that the prosecutor is electing to produce discovery beyond what is required . . .” The Memo then addresses the scope, timing and form of discovery disclosures, but cautions that, “[p]rosecutors should never describe the discovery being provided as ‘open file.’”

Finally, the Guidance Memo counsels that the prosecutor should make a good record regarding the disclosures.

The “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group” Memo reminds prosecutors of the words of Justice Sutherland that it is the prosecutor’s duty is “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). This Memo informs prosecutors of the establishment of the Guidance Memo set out above and that each U.S. Attorney’s Office shall have a “discovery coordinator.” In addition, DOJ has:
 

• Created an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
• Produced a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
• Implemented a training curriculum and a mandatory training program for paralegals and law enforcement agents;
• Revitalized the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
• Created a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.
 

No doubt much will be written in coming days and weeks regarding these Memoranda and what I’ve set out here is strictly an overview. Every criminal practitioner in federal court should read, study and be familiar with these Memoranda.

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Yesterday, June 25, both Scruggs and the government filed their sentencing memorandum (available here and here). First, maybe it’s just me, but when five lawyers from San Francisco have to sign your sentencing memo and they have collectively included 81 footnotes, then methinks you are on the losing side. 

Continuing a pattern we’ve seen in this case of minimizing any criminal conduct, Scruggs’ lawyers stake out what the case is not about, arguing that:

• During the March 2007 meeting at the Scruggs Law Firm, Scruggs only asked that Balducci “go see Judge Lackey and see if Judge Lackey would be amenable to move the case to arbitration,” and Scruggs specifically cautioned Balducci that “he was not asking [him] for anything illegal.”
•  Both Balducci and Patterson testified that they do not—and did not—think a crime was contemplated at the March 2007 meeting.
• Balducci did not meet with Judge Lackey in March 2007 to bribe him or to offer him any kind of quid pro quo, and Balducci did not intend his offer of the “of counsel” position to Judge Lackey as an incentive or bribe for Judge Lackey to rule in favor of arbitration.
• Between early May and mid-September 2007, Judge Lackey and Balducci were in repeated contact but during that time Balducci never said or suggested that Scruggs would give or offer anything to Judge Lackey in exchange for an order sending the Jones case to arbitration.
• During that same time period, Balducci repeatedly told Judge Lackey that he was not trying to influence Judge Lackey improperly and that Judge Lackey should decide the arbitration motion according to the law.
• It was not Scruggs—or even Balducci—who first proposed a payment in exchange for a favorable ruling on the arbitration motion.
•  Balducci told Judge Lackey three times on September 27, 2007, that Scruggs was not aware of the payment arrangement.

So, what does Scruggs eventually concede he did wrong – “He agreed and conspired to pay a bribe to Judge Lackey, a Mississippi Circuit Court Judge. In furtherance of the conspiracy, Scruggs agreed to and did furnish funds to be paid to Judge Lackey in exchange for a favorable order, and he prepared false paperwork to cover up the existence of the criminal conspiracy.” Memo, p. 27 Well, so, someone in this thing finally admits to some wrongdoing.

Another thing, I find a little offensive about Scruggs’ Sentencing Memo, he ends by imploring the court that there are two innocent people that will bear Scruggs’ punishment – his wife and daughter. While no doubt true, I’ve heard dozens of federal and state court judges reject that argument with the simple admonition that the harm to the family is inflicted by the defendant, not the court.  My guess – Judge Biggers won’t be swayed by this pedestrian argument. He’s heard it and rejected it too many times already.

Scruggs argues that the probation office has incorrectly calculated his sentencing guidelines at the whopping guideline of 168 to 210 months (remember the maximum sentence is 60 months). Bizarrely, Scruggs' well footnoted Memo argues that the actual guideline sentence is 46-57 months, but then later argues he should be sentenced to the lower end of the range of 30-37.

Now, the real battle ground here, is what is the value to Scruggs, or as the government argues, what loss Scruggs intended by the bribe. The government, in written work that is at the very top of the game (although they need to learn some word processing keystrokes in typing “(c)”, as opposed to “©”, which appears at least three times in there papers), argues that the question is really what loss Scruggs intended through the bribery scheme, which the government calculates at millions of dollars, which still brings the sentencing guidelines range in above the statutory maximum sentence of 5 years.

My take, Judge Biggers will sentence Dickie to 60 months – the sentence the government seeks - and be well within his discretion to do so. Backstrom, truly a footnote in this proceeding, who has the benefit of an 11(c)(1)(c) plea, will receive a sentence of half of Scruggs’ sentence, 30 months.

There’s never any victory or jubilation in seeing the demise of someone like Scruggs, who has done good work, but his day of judgment awaits.

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