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Can Skilling Help Overturn Zach Scruggs Misprision Conviction?

By Robyn Hagan Cain on July 11, 2012 | Last updated on March 21, 2019

Dickie Scruggs is a legal legend on the Gulf Coast. The former plaintiffs’ attorney became one of the wealthiest men in Mississippi and was depicted in The Insider before he pleaded guilty to conspiring to bribe Circuit Judge Henry Lackey of in 2008.

And while the elder Scruggs is serving time in an Alabama prison —and appealing a 2009 conviction for improperly influencing then-Circuit Judge Bobby DeLaughter of Hinds County — his son, Zach Scruggs, is appealing his own misprision conviction to the Fifth Circuit Court of Appeals.

This week, Zach Scruggs argued that his guilty plea in the case should be thrown out because his conduct didn't constitute a crime under the Supreme Court's 2010 Skilling v. U.S. ruling, The Associated Press reports.

Zach Scruggs pleaded guilty in 2008 to failing to report an "earwigging" conspiracy to improperly influence a judge. Scruggs claims he didn't know the plot would include paying bribes to Judge Lackey, who was cooperating with federal authorities. Instead, he claims that he only knew about trying to influence the judge to send a case to arbitration, which would have been an honest services violation, reports the Northeastern Mississippi Daily Journal.

In Skilling, however, the Supreme Court held that the honest services statue applies only in cases involving bribery and kickbacks and other applications are unconstitutionally vague. Since Zach Scruggs' plea was supposedly to a conspiracy to deprive the public of Lackey's honest services, it wouldn't count as a crime in light of Skilling because it didn't involve a bribe or kickback.

In the Fifth Circuit hearing, Zach Scruggs' attorney reminded the panel that Senior Judge Neal Biggers agreed during sentencing that Zach Scruggs did not plead guilty to any part of a bribery case, reports the Daily Journal. The government's attorney insisted that the younger Scruggs knew about the bribe.

We're guessing that the Fifth Circuit Court of Appeals will agree with Zach Scruggs on this one; the government's assertion that Zach knew about the bribes doesn't seem sufficient to support his misprision conviction since his guilty plea involved honest services, not bribery knowledge.

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