Thursday, March 01, 2007

Sentences Taintied by Perjury and Government Misconduct Upheld

US v. Dyess: Calvin Dyess ("Calvin"), Eric Spencer, and Orange Dyess ("Orange") all pleaded guilty to various offenses related to a large drug conspiracy in Charleston, West Virginia. At sentencing, the district court heard from numerous witnesses, including co-defendant Ursala Rader, Calvin's ex-wife. Rader provided testimony about the extent of the drug conspiracy and Calvin's involvement in it. Calvin received a term of life imprisonment, Spencer a term of 262 months, and Orange a term of 235 months.

While the case was on appeal to the Fourth Circuit (10 days before oral argument, as a matter of fact), the Government disclosed that Rader had been involved in a sexual relationship with William Hart, a police officer investigating the case, The affair began after the initial indictment in the case and continued through sentencing. As part of the relationship, Hart had allowed Rader to retain more than $20,000 in drug proceeds that should have been turned over to investigators. Further investigation showed that Rader, with Hart's help, had perjured herself at the sentencing hearing. The case was remanded to the district court for further proceedings.

Calvin, Spencer, and Orange filed motions asking for an evidentiary hearing regarding Hart & Rader's conduct, dismissal of the indictment due to outrageous Government conduct, withdrawal of their guilty pleas, and resentencing. Prior to the district court holding a hearing, Calvin sought to have three other co-defendants who testified against him at the original sentencing hearing to file affidavits indicating that they, too, had perjured themselves. One of those witnesses refused and reported the scheme to his probation officer.

After holding a hearing, the district court (a different judge from the original sentencing) concluded that Rader's testimony was unreliable and should be disregarded. However, the other testimony at sentencing was sufficient to sustain the Guideline calculations made at that hearing. Therefore, the district court denied any other relief, including resentencing. The district court noted that, if it did resentence Calvin, Spencer, and Orange in the post-Booker advisory Guideline system it would impose the same sentences again.

On appeal, the Fourth Circuit affirmed both the convictions and sentences (2-1) of the defendants.

First, the defendants argued that the indictments against them should be dismissed due to outrageous Government conduct. The court rejected that argument, affirming the district court's conclusion that Hart's motivations in becoming involved with Rader were personal in nature, not professional, and not part of a Government plan to aid the prosecution. In addition, the court held that dismissal was not required when the relationship at issue occurred after the events covered by the indictment took place.

Second, Calvin and Orange argued that they should have been allowed to withdraw their guilty pleas due to ineffective assistance of counsel for allowing them to plead guilty to an offense with a possible life sentence (Calvin) and when he did not understand the elements of the offense (Orange). The court rejected those arguments as well.

Third, all three defendants argued that their sentencing violated Booker because their sentences were increased based on judicially found facts. The court rejected this argument, holding that while the initial sentencing in 1999 would have violated Booker, and harm was obliterated when the district court on remand said that it would resentence the defendants to the same sentences under a post-Booker system.

Fourth, the defendants argued that their sentences were not supported by sufficient evidence, a claim the court rejected based on the district court's findings that there was sufficient evidence outside of Rader's perjurious testimony to support the original sentences.

Finally, Calvin argued that the district court failed to properly group his drug and money laundering convictions under the Guidelines. The court rejected that argument, largely because both parties appeared to concede that the drug sentence was so high (life in prison) that the failure to group was harmless.

Judge Gregory dissented from the court's holding on the sentencing issues. Gregory argued that the district court's proceedings on remand were insufficient to provide both the new district court judge and the appellate court a sufficient record from which it could determine whether the sentences imposed violated Booker or were unreasonable.

No comments: