UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
2 LONDON
3
4 UNITED STATES OF AMERICA,
CRIMINAL #96-00060
5 PLAINTIFF,
6 VERSUS LONDON, KENTUCKY
JULY 25, 1997
7 1:55 P.M.
8 CHALMER C. HAYES,
9 DEFENDANT.
10
TRANSCRIPT OF SENTENCING PROCEEDINGS
11 BEFORE THE HONORABLE JENNIFER B. COFFMAN
UNITED STATES DISTRICT JUDGE
12
13 APPEARANCES:
14 FOR THE PLAINTIFF: MR. PATRICK MOLLOY
MR. MARTIN HATFIELD
15 ASSISTANT U.S. ATTORNEYS
110 WEST VINE ST.
16 LEXINGTON, KY 40507
17 FOR THE DEFENDANT: MR. MARVIN MILLER
ATTORNEY AT LAW
18 120 DUKE STREET
ALEXANDRIA, VA 22314
19
MR. MICHAEL DEAN
20 ATTORNEY AT LAW
105 SOUTH BROAD STREET
21 LONDON, KY 40741
NATHAN F. PERKINS
22 OFFICIAL COURT REPORTER
P.O. BOX 5161
23 LONDON, KY 40745
(606) 878-8450
24
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
25 PRODUCED BY COMPUTER.
Page 1
1 FRIDAY
2 JULY 25, 1997
3 1:55 P.M.
4 THE CLERK: London criminal number 96-60, United
5 States of America versus Chalmer C. Hayes.
6 THE COURT: All right. Let me see. Let the
7 record reflect that the defendant is present. He is
8 represented by his attorneys Mike Dean and Marvin Miller.
9 The United States is represented by Assistant United
10 States Attorney Martin Hatfield and Assistant United States
11 Attorney Pat Molloy.
12 First of all, before we start the sentencing, just a
13 couple of notes.
14 Mr. Miller, I note that you've filed what you've called
15 objections to the Court's not having a hearing or canceling
16 the hearing that I had scheduled. You had, of course, filed
17 some post-trial motions. I held a hearing on those, I think
18 it was April 10th of this year. You - I'm not sure you had
19 a right to a hearing, but I held it anyway. We held that in
20 London. You then renewed that motion and, frankly, I
21 scheduled a hearing on it before I ever read the papers.
22 And when I read the papers I realized that there was no need
23 for a new hearing because, as I said in the order, in terms
24 of quantity, there was more there, but qualitatively there
25 was no difference in what you were saying from what we had
Page 2
1 seen before. So that's why I canceled the hearing.
2 I'm not going to be preparing an order in response to
3 your objections. They are in the record. You have
4 everything there in the record.
5 I had scheduled your hearing, I guess, at the 16th, and
6 at your motion it was scheduled for the 18th before it was
7 canceled.
8 With regard to this sentencing, of course, this was
9 originally scheduled May the 2nd or thereabouts.
10 Again, the defendant's attorney asked that it be changed
11 because of the - I think that was for conducting an
12 examination of the defendant. It was rescheduled to July
13 25th in London, which is today. I - I changed the location
14 of that to Lexington for personal reasons. And I guess
15 that's - that's where we are now.
16 With regard to your - your motions, your post-trial
17 motions, I had made a ruling on those. So as far as I know,
18 there are no outstanding motions.
19 You are standing, Mr. Miller.
20 MR. MILLER: Yes.
21 THE COURT: Is there some disagreement? Is there
22 a pending motion?
23 MR. MILLER: No, Your Honor, just something I -
24 when you have completed, there is something I need to have
25 an opportunity to address to you before the Court proceeds
Page 3
1 to sentencing.
2 THE COURT: And that's with regard to what? With
3 regard to the sentencing?
4 MR. MILLER: No, ma'am.
5 THE COURT: All right. What does it regard?
6 MR. MILLER: You made the statement that we have
7 put in the record everything that we want, and that's
8 inaccurate. And I don't --
9 THE COURT: Well, I will tell you, I'm not going
10 to get into your motions further. The record contains what
11 it contains. I see that you have filed a - some objections,
12 and as far as I am concerned, I am overruling your motions,
13 and that's the subject of this.
14 MR. MILLER: I'm not here to argue that, I just
15 have a question to ask.
16 THE COURT: All right. What's your question?
17 MR. MILLER: My question is this. We had intended
18 to present evidence relative to the motion.
19 THE COURT: Your objection states that.
20 MR. MILLER: And without arguing that point or
21 trying to create a hassle around that, how would you prefer
22 that we proffer, or can we proffer --
23 THE COURT: Your objections state the categories
24 of evidence you intend to present. If you want to take it
25 to the Court of Appeals, you will just have to take it on
Page 4
1 the record as it exists now.
2 MR. MILLER: All right, Your Honor.
3 THE COURT: All right. Now, so that's against
4 that background. I guess we are here today on this
5 sentencing.
6 Mr. Hayes, would you stand, please?
7 Mr. Hayes, I have here a copy of the presentence
8 investigation report that was prepared in your case by the
9 probation office. Have you received and reviewed a copy of
10 that report?
11 DEFENDANT HAYES: Yes, I have.
12 THE COURT: And have you discussed it with your
13 attorneys to your satisfaction?
14 DEFENDANT HAYES: Yes, we have.
15 THE COURT: Do you believe you understand what's
16 in the presentence investigation report?
17 DEFENDANT HAYES: I understand what's in the
18 report, yes.
19 THE COURT: All right. Mr. Miller, have you
20 reviewed it on his behalf, discussed it with him, and are
21 satisfied that he understands?
22 MR. MILLER: Yes.
23 THE COURT: Mr. Dean, do you agree?
24 MR. DEAN: Yes, I do, Your Honor.
25 THE COURT: All right. Thank you. On behalf of
Page 5
1 the United States, Mr. Hatfield, Mr. Molloy, have you
2 received it and reviewed it on behalf of the United States?
3 MR. HATFIELD: Yes, we have, Your Honor.
4 THE COURT: All right. I will direct that this
5 presentence investigation report be placed in the record
6 under seal.
7 You may be seated now, if you wish. I will direct that
8 it be placed in the record under seal. If there is an
9 appeal in this case, the attorneys have will have access to
10 all portions of the report except that portion that includes
11 a recommendation from the probation office as to the
12 sentence.
13 Okay. Issues to resolve here today.
14 Mr. Miller, I have, I think, two issues to resolve. The
15 one has to do with whether two levels should be added for
16 obstruction of justice, one; and the other issue has to do
17 with whether the maximum statutory sentence applies in light
18 of the guidelines being higher than the maximum statutory
19 sentence.
20 So I will hear your arguments on both those objections,
21 if would you.
22 MR. MILLER: All right, Your Honor. Do you have a
23 preference? I have my stuff here, wherever you prefer.
24 THE COURT: I can hear you from there. And if the
25 court reporter begins to be unable to hear you, you will
Page 6
1 have to move to the microphone. But I can hear from you
2 there.
3 MR. MILLER: All right. I have never had anybody
4 say they couldn't hear me.
5 The basic paragraphs, I will give you the numbers first
6 so everything is clearer for the record, to make objections.
7 On paragraph 21, which addresses the obstruction, the
8 offense level first in number 24, the added adjustment on
9 the obstruction is 28. The total level comes down to
10 paragraph number 33.
11 Factually, the only factual dispute we have is the
12 paragraph regarding his former wife and statements that she
13 made at the bail hearing which were objected to then and are
14 objected now regarding threats.
15 Dealing directly with the legal issues that we have
16 regarding the offense level which the probation officer puts
17 at level 33, which is 121 to 151 months under the
18 guidelines, for a violation of 18 USC, 1958, which is the
19 only count in this case.
20 That statute provides in a noninjury case, which is this
21 case, that the penalty shall be a fine or a period of
22 incarceration from zero to a maximum of 10, with no
23 minimums, either or both.
24 Now, when Congress passed 28 USC 994, which was part and
25 parcel of the statutory creation of the Sentencing
Page 7
1 Commission - and 994 is the expression of their authority
2 and duties, so to speak, and sentencing range, et cetera -
3 they said in section A that the commission was to do their
4 work consistent with all pertinent portions of Title 18.
5 And in section B, they said that the ranges, and they
6 required them to do ranges, not to recalculate and reenact
7 sentences on behalf of Congress, but to do ranges that are
8 consistent with all pertinent provisions of Title 18, and
9 that if there was going to be a term of imprisonment in a
10 guideline that they were going to promulgate, that the
11 maximum range could not exceed the minimum by more than six
12 months or 25 percent.
13 Over in section G, they make reference specifically to
14 3553, which is the imposition of section - in Title 18, the
15 sentencing section of the code. And in subsection H, they
16 talk about the situations in which the commission is allowed
17 to put a guideline range at or near the maximum sentence.
18 They say that they may, if they feel appropriate, put a
19 sentence at or near the maximum range if certain conditions
20 are met. And they are given very tight rein, which is why
21 the statute is considered constitutional in the first place.
22 And the criteria that have to be met before they can put
23 a sentence at that range as a guideline are as follows:
24 Under (h), it has to be a felony, a crime of violence or a
25 drug offense, and - and this is conjunctive - the second set
Page 8
1 of criteria, without which they may not do that, are that
2 the defendant has to have previously been convicted of two
3 or more prior felonies which were also either related to
4 violence or drugs.
5 Now, the Sentencing Commission elsewhere was put into
6 the judicial range. That led from the Lastrada(?) case. In
7 the Lastrada(?) case the Supreme Court was asked to look at
8 whether or not it was an unlawful, that is an
9 unconstitutional, delegation of the legislative function to
10 a judicial entity. And in Lastrada(?), the Court was very
11 careful to do an amazing analysis of the guidelines and the
12 enabling delegation and the history of delegation of
13 authority. And they said in there that - and this is at
14 page 372 - that Congress generally cannot delegate it's
15 legislative powers to another, citing Field versus Clark, a
16 1892 case at 143 US 649. And so long as Congress shall lay
17 down by legislative act the principles and designate
18 authority where the person so designated is directed to
19 conform with the Congressional dictates, then they may
20 designate authority and Congress has to clearly delineate
21 the boundaries of the delegated authority. And that's in
22 Lastrada(?) at pages - excuse me, these internal pages, I
23 sometimes miss my pagination. At page 373, Your Honor.
24 Now, at pages 374 and 75 of that opinion, it says:
25 Congress instructed the commission - and this is the reason
Page 9
1 why it was held constitutional - that these sentencing
2 ranges must be consistent with pertinent provisions of Title
3 18 and do not include sentences in excess of a statutory
4 maximum.
5 It's nice to see that they use Latin there.
6 Now, the sentence here is in section 2E1.4 of the
7 guidelines, and it exceeds the statutory maximum. And the
8 pertinent part of Title 18 for this case is 1958, where it's
9 10. The other pertinent parts are subsection (h) of 994 in
10 Title 28, because it has to conform with both that section
11 and Title 18.
12 We do not have an individual before the Court with a
13 prior conviction of felonies involving either drugs or
14 violence, let alone two. So therefore, there is no basis to
15 set a guideline range at or near the max, which they are
16 authorized to do in (h)(1), but they have to meet the
17 criteria of (h)(2), which they do not.
18 Now, in the Sixth Circuit, in the Thomas case decided in
19 March '95, they talk about the constitutionality of the
20 guidelines, among other things, and adopted Lastrada(?). So
21 there is no aberrant countervailing opinion in this circuit.
22 And that's a '95 case.
23 Another '95 case is cited is in Re Bankers Trust
24 Company. There was a writ of mandamus. It had to do with
25 delegation of regulatory authority to the Federal Reserve.
Page 10
1 And in that decision, they found that the particular
2 regulation, which isn't necessarily important to us, was
3 something that was contrary to another law and they couldn't
4 have delegated the authority to promulgate a regulation that
5 was in contravention of the law. Therefore that delegation
6 was excized out. And in this case they talk about standard
7 language, which is through Lastrada(?) also. If you have an
8 unconstitutional portion of the law, you don't throw the
9 whole statute out, you take the unconstitutional portion or
10 the offending portion and take it, strike it out and put it
11 on the side.
12 And in this case which is before you today, that is what
13 it's clear you would be required to do, because the
14 guideline excees the maximums, and there is no authority for
15 it. The guideline criteria in 994 and the criteria in 3553
16 of Title 18 talk about the idea that you have two things:
17 You have an offense with variables, and you have an offender
18 with variables. The offense with variables in a case like
19 this might be whether or not it was an intended official
20 victim or an especially vulnerable victim as defined. We
21 don't have those here, but those are the kinds of offense
22 characteristics that could apply. Or multiple intended
23 victims are the kinds of things that could go to the
24 offense, even when there is no injury, but they still would
25 fit under 1958 and be applicable under various portions of
Page 11
1 the guidelines.
2 The other offender specific characteristics would go to
3 criminal history.
4 So in this case, for example, if the defendant before
5 the Court were on state parole for first degree murder, had
6 two prior convictions for assault with intent to kill within
7 five years of the state case that put him on parole, all of
8 that within the last eight years, had intended multiple
9 victims, all of whom were vulnerable, they would receive no
10 different sentence than a man of a cloth who in despair and
11 grief went to hire someone to slay somebody who had killed a
12 whole bunch of people in his community and had had an
13 unblemished record. They would be in the same position:
14 10, that's it, no place to go.
15 So the commission in this particular guideline did not
16 comply with their mandates from Congress to have offense
17 specific variables available, because there is nowhere to
18 go; or offender specific variables available, because there
19 is no way to go, regardless, in the example I'm selecting,
20 of criminal history.
21 It would appear that the guideline as a whole survive.
22 This one does not, under Lastrada(?) and under the cases
23 cited in there. Which leaves us then, in our view, to a
24 sentence under 18 USC, 3553 and the factors that they set
25 forth there which talk about what happens when there is no
Page 12
1 applicable guideline.
2 Your Honor, I don't know - that issue as a whole, the
3 integrated issue, if we prevail on it, we never address
4 obstruction, because it wouldn't apply. And I don't know
5 how you wish me to proceed on the issue of obstruction.
6 THE COURT: I think you should argue it factually
7 or perhaps alternatively, but I think you need to address it
8 on its merits.
9 MR. MILLER: All right, Your Honor.
10 THE COURT: In the context, of course, of the
11 defendant's testimony.
12 MR. MILLER: Yes, ma'am. There are two bases
13 offered by the probation for the obstruction. And this is
14 aside from the fact that there is no range. If the Court
15 finds that there is a range -- And the basis for it is
16 pretty much in paragraph 21 where they state that Mr. Hayes
17 claimed that he did not contact Mr. Myers and did not hire
18 the FBI undercover for the purposes of a murder for hire,
19 and that that conflicts with the tapes.
20 I have read the portions of the record and am not aware
21 of - and have read Mr. Myers' testimony, and I am not aware
22 of any evidence of any tapes regarding Mr. Myers'
23 conversations with Mr. Hayes. I did not try the case. If
24 I'm in error, I apologize. I have read Mr. Hayes'
25 testimony, and in reading Mr. Hayes' testimony, I have not
Page 13
1 seen him contradict the statements contained in the tape
2 recordings.
3 And it would seem that if the United States intends to
4 rely on an obstruction enhancement, then they have the
5 burden to go forward in this and establish it. And I don't
6 see the tapes, the conversations with Mr. Myers or
7 Mr. Hayes's testimony conflicting with saying I didn't say
8 that or it's a ginned tape or it's one of these electronic
9 kind of marvel thing that people do with tapes these days,
10 that somebody played these kinds of games like that with it.
11 I didn't see that in his testimony anywhere, what I have
12 read of it. I believe that I may have had all of his trial
13 testimony.
14 I also don't know, from talking with Mr. Galbraith, that
15 there were any tapes of Mr. Myers in the case. If there
16 are, then I need to be corrected on that misapprehension on
17 my part. But I don't know that there were any introduced
18 into trial and don't know that there is any testimony that
19 he contradicted the contents of the tapes that were
20 presented.
21 THE COURT: All right. Thank you.
22 On behalf of the government, who is going to argue in
23 response to these objections? Mr. Hatfield?
24 MR. HATFIELD: Yes, Your Honor. Your Honor, if it
25 please, with regard to the instruction, we believe that the
Page 14
1 probation office was correct in their assessment.
2 Mr. Hayes was asked on at least two occasions, that I
3 can recall, by myself whether or not he ever had any
4 conversations with Lawrence Myers concerning having his son
5 murdered. Both of those questions he asked answered in the
6 negative. And the Court at some point in time during the
7 trial, I don't know if it was on motion for directed verdict
8 or motion for judgment of acquittal or not, but the Court
9 picked up on the fact that if Mr. Hayes had ever had a
10 conversation concerning that with Mr. Myers, then how did -
11 when Don, the undercover agent, first contacted Mr. Hayes,
12 how did Mr. Hayes know to immediately start discussing
13 Personal information about his son with Don and agree to
14 send Don a picture of him and driver's license numbers and
15 that sort of thing, when he had never talked to or met Don
16 before.
17 So that, Your Honor, was absolutely contrary and was
18 perjurous testimony.
19 Also, Mr. Hayes' defense throughout this whole thing is
20 that he knew that this was all a setup and that he was
21 merely playing with the government or trying to set the
22 government up or catch the FBI. I think Mr. Galbraith used
23 the words, kicking the government's shins and tweaking their
24 noses.
25 Along those lines, and to - what I felt like to attempt
Page 15
1 to compel the jury to believe that he knew - that he had
2 reasons and ways to know who Don actually was, the
3 undercover agent, he got up on the witness stand and he
4 testified at length about his days with the CIA; how long he
5 had been employed by the CIA; what he and these other
6 members of some sort of an elite group that owned a computer
7 had done; how they had caused numerous members of Congress
8 and senators to either resign from office or not run for
9 re-election; how he knew something about - about the Vincent
10 Foster murder or homicide or suicide or whatever it was, and
11 that that - that the - that Mr. Foster's death was directly
12 related to Mr. Hayes and his group of ex-CIA agents
13 releaving Mr. Foster of a large sum of money in a Swiss bank
14 account.
15 We then presented evidence that - that Mr. Hayes had
16 never been affiliated with the CIA. And that wasn't good
17 enough for Mr. Hayes. He then retook the stand again, and
18 said that if the government had looked in the right place,
19 that - or had asked the right questions, then we would have
20 found that he did work for the CIA. And Mr. Hayes from the
21 witness stand gave the Court and the jury information
22 concerning what his CIA name was and what his number with
23 the CIA was.
24 Along those lines, we contacted the CIA again, and we've
25 procured a letter from them that I would like to enter into
Page 16
1 the record as government exhibit S 1 today, stating that
2 they searched the records under Charles S. Lawson, which is
3 what Mr. Hayes testified to, and Mr. Hayes' control number
4 that he gave from the witness stand, 602367, under oath.
5 And they again said that they found that this individual had
6 no relationship with the CIA, either employment, contractual
7 or operational.
8 So there again, this was the crux of Mr. Hayes' defense,
9 I thought, in that he could convince the jury that he was
10 this super top secret agent that had caused numerous high
11 level officials within the government to step down from
12 their positions, so therefore leaving the impression with
13 the jury that if I can do that, I know - I should have known
14 that this little FBI agent from somewhere in Alabama was an
15 FBI agent.
16 And so I would like to introduce this --
17 MR. MILLER: I haven't seen that, Your Honor. I
18 don't think it's permissible. If we're going to put in an
19 exhibit under Rule 16, which --
20 THE COURT: Show it to me.
21 MR. MILLER: - which I haven't --
22 THE COURT: Show it to him. I can hear hearsay.
23 (A document was shown to counsel)
24 MR. MILLER: I will address that at the
25 appropriate time, Your Honor.
Page 17
1 THE COURT: All right.
2 MR. MILLER: When it's our turn for...
3 (The document was shown to the Court.)
4 MR. HATFIELD: Finally, Your Honor -- I am sorry.
5 (A pause was had in the proceedings)
6 THE COURT: That's all right. Go ahead.
7 MR. HATFIELD: Finally, Your Honor, under the
8 instruction under 3C1.1, one of the nonexhaustive examples,
9 that is a nonexhaustive limit in one of the examples, when
10 someone subornes or attempts to suborne perjury. And I
11 don't think the false matter that someone testifies about, I
12 don't think there is any question that it has to be material
13 to the charge. And I would submit to the Court, Your Honor,
14 that the testimony that I have just outlined regarding
15 Mr. Hayes, as well as specifically the fact that he denied
16 ever discussing this with Lawrence Myers, I think the
17 probation office is correct in their assessment of the
18 situation in giving Mr. Hayes two points for obstruction of
19 justice.
20 THE COURT: All right. Thank you.
21 Now, the other objection --
22 MR. MILLER: Your Honor, I'm sorry.
23 THE COURT: Wait just a minute, Mr. Miller, I'll
24 come back to you.
25 The other objection was the statutory maximum versus the
Page 18
1 guideline range being on top of that. I need you to address
2 that as well.
3 MR. HATFIELD: All right, Your Honor. Of course,
4 that, I would first refer the Court to section 5G1.1, which
5 is sentencing on a single count of conviction. It's 5G1.1.
6 That specifically addresses where there is a statutorily
7 authorized maximum sentence that is less than the minimum of
8 the applicable guideline range.
9 And that addresses the situation we've got here. You've
10 got a statutory authorized maximum sentence of 10 years.
11 And that is less than the minimum of the applicable
12 guideline range, which is 121 months, I believe, without
13 looking back at the presentence report. No, I'm sorry, 151.
14 THE COURT: One fifty-one to --
15 MR. HATFIELD: It says the statutorily authorized
16 maximum shall be the guideline sentence. So - and then it
17 goes on down in the commentary -- And this guideline has
18 been in effect since 1987, and there is no other commentary
19 to it except the little paragraph that's listed. And the
20 second sentence of that paragraph specifically deals with
21 our situation here.
22 It says: For example, if the applicable guideline range
23 is 51 to 63 months and the maximum sentence authorized by
24 statute for the offense of conviction is 48 months, the
25 sentence required by the guidelines under section A is 48
Page 19
1 months.
2 Subsection A is what we're dealing with. A sentence
3 less than 48 months would be a departure.
4 And I think what this - what this section of the
5 guidelines is saying, is that we are adopting this - whether
6 you want to call it the statutory sentence or the guideline
7 sentence - we're adopting, anywhere there is a statutory
8 sentence in the guidelines that's less - I am sorry,
9 anywhere there is a statutory sentence that's less than the
10 guideline sentence, we are hereby adopting the statutory
11 sentence as the guideline sentence. And that gives the
12 Court direction on - on where an individual should be
13 sentenced.
14 And I would also point out in this particular case, that
15 even though the offense level is a 32 under the applicable
16 guidelines, there are other adjustments that can go into
17 that, downward adjustments that would make it fall within
18 the - or below the 10-year range. Those are adjustments
19 that Mr. Hayes obviously didn't get, but such things as - as
20 acceptance of responsibility, which can be anywhere from one
21 to three points, and there could also be some sort of
22 adjustment for role in the offense which would bring it down
23 even further. And if you took those into account, and a
24 person with a criminal history score of 1, that would bring
25 it down below the 10-year maximum as prescribed by the
Page 20
1 statute.
2 Also, this guideline has the alternative where you can
3 use either the 32 or the level that would be applicable to
4 the underlying offense conduct. And in this particular
5 case, the 32 happens to be one that we used, because I think
6 it says use the highest of the two.
7 But I think, clearly, the commission has said here, if -
8 if the guidelines are higher, then we're adopting the
9 statutory maximum as our guideline sentence. And I think
10 that addresses the issue, unless the Court had any
11 questions.
12 THE COURT: No, I just wanted to be sure you
13 addressed it.
14 MR. HATFIELD: Yes, sir.
15 THE COURT: Thank you, Mr. Hatfield.
16 THE COURT: All right. Any reply to either of
17 those arguments, Mr. Miller?.
18 MR. MILLER: Yes, Your Honor. Very briefly on the
19 guideline applicability. That section in section 5 of the
20 guidelines is for those cases that fit within subsection (h)
21 of 994 and had to be there for that reason, where they could
22 put at or near the maximum if it fits a certain criteria,
23 which is not this case. So that argument does not address
24 this case, because this case --
25 THE COURT: Do you have a case that says that? Or
Page 21
1 can you point to something in the guidelines?
2 MR. MILLER: I can point to 994 which says when
3 you can put at or near. And the only time you can do it is
4 under those criteria and it's nowhere else. And I could
5 point to Lastrada, which I presented to the Court earlier.
6 THE COURT: But Lastrada(?) doesn't expressly
7 address 5G1.1(a).
8 MR. MILLER: No case I ever found said that -
9 looked at 2E1.4, looked at a violation like this of 18 USC,
10 1958. I don't know of - if it's because of the rarity of
11 the type of prosecution not in conjunction with other things
12 or not, but I know that in the guidelines other than
13 subsection (a)(8), there is another provision that deals
14 with multiple offenses, which is not this, or multiple
15 counts or multiple indictments or a group, if you have cases
16 in a couple jurisdictions or something.
17 That doesn't apply here. So I can't see that it's been
18 raised and I'm not going to tell you that it has been raised
19 or decided. All I can say is that in looking at what they
20 did in Lastrada and the cases that they dealt with it, the
21 Sixth Circuit said it's fine, good, went on. Other circuits
22 which looked at it in greater detail talk about, and as they
23 did in the banking regulation case, delegation, of what the
24 delegatee can and can't do.
25 And I can't see any way that this can fit within the
Page 22
1 law, even though I can't say a case has already said that.
2 Now, they have the burden, and they put in an exhibit,
3 and I have a few that I would like to tender to you that
4 address this issue. And I have copies also for the
5 government.
6 THE COURT: All right.
7 MR. MILLER: And let me give the government this,
8 which is number 1, which is a - an evaluation of Mr. Myers
9 and a discharge date. And I will explain how they are
10 relevant after I present them, if I can do that, and make
11 that easier, identify them first, Your Honor.
12 THE COURT: This is in regard to the obstruction
13 of justice --
14 MR. MILLER: Yes.
15 THE COURT: - enhancement?
16 MR. MILLER: Yes.
17 (A discussion was had off the record)
18 MR. MILLER: I have item number 2, Your Honor, is
19 a series of records from California regarding Mr. Myers
20 which I gave the government earlier, but I haven't put it in
21 the record. All of this is for the obstruction issue.
22 MR. HATFIELD: Your Honor, we would reserve the
23 right to object to this after we see what Mr. Miller has to
24 say.
25 THE COURT: All right.
Page 23
1 MR. MILLER: 3 is an NCIC report, which I - I'll
2 address how all this relates, Your Honor, after I get it -
3 the housekeeping out of the way. And 4 and 5 are - 4 is an
4 affidavit from an investigator that I had search the records
5 at the University of Maryland, and 5 is a certification from
6 the registrar's office, verification of academic
7 information. And the record will reflect that I am handing
8 this to the United States.
9 MR. HATFIELD: This is 5.
10 MR. MILLER: That's 5 and the affidavit is 4,
11 regarding Mr. Myers and the University of Maryland.
12 And now, if I could have them all identified, if I could
13 move them in and then tell you why I think they help us in
14 our argument on obstruction.
15 THE COURT: All right.
16 MR. MILLER: Thank you, Your Honor. In the first
17 instance, the military and school records establish -
18 military records establish his discharge date. His trial
19 testimony was that he served in - for four years, even
20 though you already recognize it was less than three. The
21 trial testimony also had a portion listed by the prosecution
22 on direct examination for Mr. Myers regarding attendance at
23 the University of Maryland.
24 The last two exhibits, the raised seal copy, which you
25 have, from the University of Maryland and the affidavit from
Page 24
1 the investigator that had the records search there shows
2 that he never attended.
3 The records regarding the criminal history and the
4 California records contain in there records reflecting that
5 he was in Highland Hospital psychiatric wing. He was
6 committed for lack of competence in the November, when he
7 was charged with extortion by threats. And then the
8 following March was restored to competency. And in the
9 middle he was in a psychiatric hospital in California, until
10 the judge said he was restored to competency, and that he
11 failed to appear for sentencing on his plea agreement and is
12 a fugitive in violation of 18 USC 1073, which is the
13 fugitive statute, which is an ongoing offense until you are
14 apprehended, and is a federal violation.
15 MR. HATFIELD: Your Honor, object. Mr. Miller, I
16 think I understand what he's trying to do, trying to get
17 into the record things that the Court --
18 THE COURT: Overruled. But I want you, before you
19 go further, relate this for me --
20 MR. MILLER: Yes.
21 THE COURT: -- to Mr. Hayes' truthfulness --
22 MR. MILLER: Yes.
23 THE COURT: - and not Mr. Meyers' truthfulness.
24 MR. MILLER: Yes. The way it relates to
25 Mr. Hayes' obstruction is, and so we're looking at - at his
Page 25
1 obstruction at trial and seeing whether or not the evidence
2 taken as a whole, including other evidence that's
3 presented --
4 THE COURT: Whose obstruction?
5 MR. MILLER: Mr. Hayes has an obstruction
6 possibility here, and we're looking at it post-trial to
7 determine whether or not the record as a whole justifies an
8 enhancement, assuming the guidelines apply, which I don't
9 concede. But that if they do, so that in that context you
10 have to look at the information offered to you to support
11 the claim that he obstructed.
12 One of the legs on which the government rested in their
13 argument was the credibility of Mr. Myers. That's what I
14 just - that's not the only thing they did, but that's the
15 first part I'm addressing. The second part is their letter,
16 I will address next in order.
17 They talk about Mr. Myers. The probation officer's
18 report also talks about the testimony of Mr. Myers. And I'm
19 addressing just that portion of it. I will deal with the
20 second part in a minute.
21 THE COURT: I understand.
22 MR. MILLER: And these exhibits deal with that
23 portion of it. To the extent that these exhibits deal with
24 that portion of it, what they are doing is showing this
25 Court that because Mr. Myers was given basically total
Page 26
1 immunity on a ULFAP violation - excuse me, unlawful flight
2 to avoid prosecution.
3 MR. HATFIELD: I object. That's not what happened
4 and I don't want the record to be conjested with that.
5 Nobody ever gave Mr. Myers immunity. And I apologize for
6 interrupting Mr. Miller.
7 THE COURT: That objection is sustained. There is
8 no immunity given as far as I know in this case.
9 Now, Mr. Miller, let's get to the point. Let's get to
10 the point. The point here - and frankly, I think this is
11 all a false issue. I think the entire Lawrence Myers issue
12 is a false issue. What - what the government said, more
13 precisely, is not reliance upon the entire credibility of
14 Myers, Lawrence Myers. What he said is, paraphrasing, that
15 the defendant lied when he said he did not have
16 conversation - a conversation with Myers about having his
17 son killed.
18 Now, if you can respond to that, let's just get to the
19 point.
20 MR. MILLER: That whole point is dependent upon
21 Myers' credibility, because there is no other basis upon
22 which that statement can rest other than Myers' credibility.
23 I don't know of any other basis for that statement to be
24 utilized unless Myers is credible.
25 THE COURT: All right. And then --
Page 27
1 MR. MILLER: Now, Myers is not credible because,
2 A, it is clear from the exhibits we presented that he
3 committed perjury. He lied about the military and
4 schooling. His criminal record is also clear that he had
5 three psychiatric episodes, which those records reflect.
6 And because of those three episodes, and I'm not going to
7 argue that because that issue has been decided by the Court,
8 but that's a reflection on lack of credibility for him in a
9 standard where this issue must be decided by clear and
10 convincing evidence, according to that Second Circuit case
11 we cited earlier in our memo. Then - I think it's 100 F.3d,
12 I forget the page number, I apologize, I think it was
13 decided in November of '96. Ruggiero. Let me give you the
14 name, Your Honor. I better spell it because I can't
15 pronounce it real well. It's spelled R-U-G-G-I-E-R-O. And
16 it was November of '96, 100 F.3d, 284.
17 Under that standard, with this evidence about his
18 credibility now at this juncture, it can't be met and so
19 therefore that prong of their basis to try and tag Mr. Hayes
20 with obstruction fails.
21 Dealing now with Mr. Hayes - and I would say that I'm
22 not contending that there was an immunity agreement in
23 writing with Mr. Myers that he wouldn't be prosecuted for 18
24 USC, I think it's 1073, which is the obstruction, but
25 absconding and unlawful flight. I don't contend that there
Page 28
1 was a written agreement. And if that was understood, I
2 didn't mean to say that. What I meant to say is - and it is
3 1073, flight, felony - that there was a de facto benefit to
4 him in his fugitive status. Whether it was express or
5 implied I don't think makes a difference. And it was a
6 basis for a determination of lack of credibility and bias on
7 his part that this Court can take into account in weighing
8 that in this prong of the obstruction. That's our argument
9 on that part.
10 ' Turning now to the other part on which the government
11 relies, which is the CIA letter. We'll renew our objection
12 on that, for discovery purposes it should have been
13 produced. The second thing thing is, it is clear that it
14 did not search all of the appropriate records, and says so.
15 I want to recount, if I might, very briefly a case with
16 the CIA, to give you an example to understand my argument.
17 And in this case there were secret cables and confidential
18 cables that had been released by someone in contravention of
19 the classification laws dealing with the State Department
20 and intelligence matters, the Department of Justice. And
21 the case was U.S. versus Troung. In U.S. versus Troung the
22 Department of Justice asked the Central Intelligence Agency
23 to analyze the traffic that had been compromised and give
24 them a report. The report came back and said that it would
25 take the attenuated logic of a Jesuit to say that these
Page 29
1 reports created any harm to the national interest.
2 The Department of Justice then sent a memo back to the
3 Central Intelligence Agency with a directive: We can not
4 possibly prosecute this case with that analysis, do it
5 again. Someone else did it.
6 In that analysis, looking at it, to the original
7 analysis, document by document, the language was very
8 clever, and it was - and the scrivener was very, very
9 schooled in English, and said in both documents the same
10 thing, but in the document on which they relied on the
11 Troung case, and then they didn't rely on the document, they
12 put a witness on stand.
13 I tried the case. That's how I am familiar with the
14 documents and how close they were. But this is how
15 different they appeared. This document says, reasonable,
16 according to whom with no standard or criteria. It's like
17 litigation regarding reasonable efforts to segregate
18 juveniles in various states has been found to leave the
19 state not responsible for failing to segregate juveniles
20 from adults because reasonable efforts had no criteria and
21 no force of law. And they said, well, we'll look at it.
22 They couldn't really do it. Then in civil rights litigation
23 they have not been held liable in those states where that
24 has been a problem.
25 So in the letter you will notice, though I don't have a
Page 30
1 copy, that they talk about reasonable efforts were made to
2 search some records. But it was not an all records search.
3 And I will proffer to you a witness's testimony on that
4 issue. His name is Ted Gunderson, G-U-N-D-E-R-S-O-N,. He
5 served as a member of the Federal Bureau of Investigation
6 from 1951 to 1979. In 1979 he retired as a Senior Special
7 Agent in charge of the FBI Los Angeles division. He was in
8 the field from 1951 to 1960. Had assignments in field
9 offices in Alabama, Tennessee, New York and New Mexico.
10 Nine years experience in the field in internal security and
11 coungterespionage for the FBI. Supervisor at FBI
12 headquarters in Washington, D.C., 1960 to '65. Special
13 Agent Supervisor at FBI headquarters, Washington, D.C.
14 Supervised organized crime, security, government employees
15 and special inquiry White House matters on three
16 assignments. 1965 to '70, Assistant Special Agent in
17 charge, New Haven Connecticut, counterespionage matters
18 involved during that assignment as his duties. From '70 to
19 '73, Assistant Special Agent in charge of the Philadelphia
20 division. '73, Washington, D.C. as an inspector. '73 to
21 '77, Special Agent in charge of the Memphis and Dallas
22 divisions. '70 to '78, Senior Special Agent in charge of
23 the Los Angeles division, three Special Agents in charge -
24 offices under his command, 16 resident agent under his
25 command, 700 persons were working for him. He had a budget
Page 31
1 of 22.5 million dollars and 14,000,000 people within his
2 jurisdictional area.
3 Now, during the past years in his consulting business,
4 in the last 17 years he's maintained contact with people in
5 the intelligence community, both on a professional and
6 friendship basis, because he worked with them for so much of
7 his life.
8 Now, he has had experience in finding out whether
9 individuals, for a variety of reasons, were or were not
10 affiliated with various parts of the United States
11 intelligence agencies and community and so on. And in his
12 experience, one would need to do an all-records search in
13 order to get an accurate answer as to whether an individual
14 was or was not affiliated with or associated with the
15 intelligence community, in this particular case the CIA.
16 That is not an all records search. It doesn't pretend
17 to be. It is careful in its wording. And I give credit to
18 the author.
19 THE COURT: I understand your point on that.
20 MR. MILLER: All right.
21 THE COURT: I understand your point on the letter.
22 MR. MILLER: All right. Now, if you take these
23 two pieces, and the two prongs of this one approach, it
24 cannot be said to the standard of clear and convincing
25 evidence that the testimony at issue, as recounted in the
Page 32
1 paragraph at issue of the presentence report, which is
2 paragraph 21, is such that it rises to the level of
3 obstruction. And I don't think the Court can make the
4 required particularized findings necessary to make such a
5 determination under the evidence presented here on this
6 issue.
7 THE COURT: All right. Thank you. I do
8 understand your arguments on - on both of these points. Let
9 me see here. Before I hear anything further, I do want to
10 go over the calculations that are set out in the presentence
11 investigation report.
12 If you wish to follow along, this is at page 9 of the
13 report.
14 The base offense level is drawn from section 2E1.4 of
15 the guidelines and is set at a base offense level of 32. In
16 the report there are two levels added for obstruction of
17 justice, making a total offense level of 34.
18 I have heard your objection to the obstruction of
19 justice enhancement, Mr. Miller. And your objection with
20 regard to the range of sentencing here, essentially that
21 there is no range which applies. Other than those
22 objections, do you object to the calculation at page 9 of
23 the presentence report?
24 MR. MILLER: Other than those objections, we have
25 no further objections to the calculations, Your Honor.
Page 33
1 THE COURT: All right. And then on page 10 we
2 show a criminal history score of zero, making a criminal
3 history category of one be appropriate in this situation.
4 Any objection to that, Mr. Miller?.
5 MR. MILLER: No, Your Honor, I think that's
6 correct.
7 THE COURT: Mr. Hatfield, any objection to either
8 of those calculations?
9 MR. HATFIELD: No, Your Honor.
10 THE COURT: Mr. Miller, I will ask you and your
11 client to come forward in front of the clerk, please.
12 While they are coming, I do want to say, Mr. Hatfield,
13 that a copy of this letter from the CIA needs to be given to
14 the defense counsel. And I will direct that that government
15 exhibit S 1 be placed in the record with regard to this
16 sentencing hearing and that defendant's exhibits marked 1
17 through 5, I think, be placed in the record. And I believe
18 you have copies of those.
19 MR. HATFIELD: Yes, and that's what I was going to
20 say, Your Honor. Those are nothing new, with the exception
21 of numbers 4 and 5. All of those were documents that we had
22 actually provided - well, 1 and 3 I think we provided to
23 defense counsel.
24 THE COURT: I understand you objected but I
25 overruled that objection.
Page 34
1 MR. HATFIELD: All right.
2 MR. MILLER: Your Honor, we had requested a
3 downward departure, as you know, based on the health age
4 issue.
5 THE COURT: You probably need to address that now
6 as a part of this exchange.
7 I, Mr. Hayes, you should know that it is at this point
8 in a sentencing that I ask your attorney if there is
9 anything else that needs to be said with regard to
10 sentencing. And I know there is a motion for a downward
11 departure. After he speaks on your behalf, I will turn to
12 you to see whether there is anything you wish to say.
13 Mr. Miller, you may go ahead and address your motion for
14 downward departure and anything else you wish to say with
15 regard to sentencing.
16 MR. MILLER: All right. 5H1.1 and 4 are where
17 this kicks in. If you look at the report, that's 1, 1.
18 You'll see that he's on 10 medications. He's got a
19 blood pressue problems. Collapsed lung problems.
20 Tubercular diagnosis. Embolisms that maybe a month or two
21 ago the marshals were very concerned that he might have to
22 be under constant hospital monitoring. They are temporarily
23 under medical control. However, where he's currently
24 housed, the local authorities are not getting him his
25 medication at all on a regular basis as required by the
Page 35
1 doctors and don't appear to have either the impetus or the
2 ability to get them to him when he needs them.
3 He has intestinal problems in addition to that, as well
4 as blood pressure, which can sometimes manifest itself into
5 more serious problems, depending on the individual. And at
6 his age and general overall health with the other
7 conditions, that's more of a problem than it would be for
8 someone who didn't have the entire gamut of things.
9 In Kuhn, the Supreme Court talked about adjustments on
10 things that were permissible and courts relying on concerns
11 In life and knowledge about things to look at these issues.
12 And in 3553 you talk - you see talk from Congress about
13 judges, when looking at all of these things - and these are
14 permissible areas - you see judges looking at things and
15 seeing that courts need to look at jail as not being a magic
16 panacea to solve all ills.
17 Our cite in that regard is interesting. I apologize to
18 the Chinese. They have 103 people for every 100,000. Per
19 thousand incarcerated, we and the Russians are at the top.
20 They have 690, we have 600. The next civilized nation down
21 is about 300. We have the worst crime rate. All of the
22 studies in reduction of crime rate that I can find from any
23 source, government or otherwise, all agree that the massive
24 incarceration is having zero impact on the crime rate. It
25 is having a great deal of impact on the profitability of
Page 36
1 prisons and privatization.
2 And the one area where they have really have been able
3 to do a study on crime reduction, which is New York City,
4 they found that the incarceration rates were going down
5 while the crime rate was going down, and that it was the
6 policing changes rather than the jailing of people changes
7 that reduced crime in that area which was studied.
8 THE COURT: Mr. Miller, philosophically you may
9 have some good points to make. However, if this is a motion
10 to depart based upon the age and physical condition of your
11 client, I suggest you bring yourself back to that point and
12 let's argue that, rather than the value of incarceration as
13 an end to crime.
14 MR. MILLER: Well, they are interrelated to the
15 extent that under Kuhn, when a court is looking at that
16 application of a departure such as 5(h)(1), 1, and 4, you
17 can look at the experience and rationality of what's before
18 you in making that decision. And in this particular case,
19 it would not be of any detriment or harm to anyone to
20 refrain from giving a departure. And I think a departure -
21 you should not refrain from giving a departure and should
22 give a departure in this case because of his health.
23 A 10-year sentence on a 63-year-old, which is what the
24 government is saying here, puts him in his 70's. And there
25 is no relief likely in that context. And you have to look
Page 37
1 at the age, which is one, and age and health, which is 4
2 under 5 (h)(1). And in combination to the sentence, you
3 don't do it in a vacuum with myopia, you do it looking at
4 the whole panoply of things. And that's what I'm asking you
5 to do. It would be appropriate for a downward departure in
6 this case.
7 THE COURT: All right. All right. And is there
8 anything else you wish to say with regard to sentence?
9 MR. MILLER: No.
10 THE COURT: All right. Mr. Hayes, you may speak
11 on your own behalf before sentence is imposed, if you wish.
12 Do you have anything you wish to add?
13 DEFENDANT HAYES: No, ma'am, I don't.
14 THE COURT: All right. Mr. Dean, do you have
15 anything you want to say on behalf of the defendant?
16 MR. DEAN: I don't have anything to add, Your
17 Honor.
18 THE COURT: Mr. Hatfield or Mr. Molloy, on behalf
19 of the United States?
20 MR. HATFIELD: Your Honor, do you wish me to
21 respond to the departure issue?
22 THE COURT: No.
23 MR. HATFIELD: Okay.
24 THE COURT: I'm - I have had, I have heard what
25 they have to say, and you don't have to respond to that
Page 38
1 because I am going to deny that motion for downward
2 departure.
3 MR. HATFIELD: Okay. One thing I would ask is
4 that the Court make clear for the record that you recognize
5 that you do have the discretion to depart and then put on
6 the record whatever reasons it is that you are - will not
7 depart.
8 With regard specifically to the sentence, this has been
9 an interesting case, and there is a lot that came out during
10 the case, especially with regard to Mr. Hayes. And I
11 touched on it earlier with regard to his testimony about
12 prior government experience and CIA membership and so forth
13 and so on, causing Vincent Foster to take his own life and
14 Congressmen and Congresswomen and U.S. Senators to resign
15 from office.
16 I, quite frankly, feel that there is not a whole lot
17 that Mr. Hayes said on the witness stand that was true
18 throughout his entire testimony. I think he attempted to
19 make a mockery out of the justice system in this particular
20 case. And he's tried to blame everyone but himself for what
21 took place here.
22 And what actually took place here and what it boiled
23 down to was Charles Hayes, this defendant, being selfish and
24 greedy and conniving, in an attempt to gain wealth. That's
25 basically what this case boiled down to. And Mr. Hayes has
Page 39
1 never taken responsibility for that. He's not been honest
2 with this Court. He wasn't honest in front of the jury.
3 And when you go back and look at the case, he can - they can
4 say that Lawrence Myers lied, they can say that David Keller
5 lied or did something to - to conjure up a false NCIC
6 report, they can blame everybody else, but when you go back
7 and look at the case and what it really boils down to, it's
8 a cold hearted Charles Hayes, on tape, his own words,
9 unsolicited, trying to hire another individual to kill his
10 son, all out of greed for money.
11 And based on that, I would ask the Court to sentence
12 Mr. Hayes to the maximum, which is 10 years.
13 THE COURT: All right. Thank you.
14 MR. MILLER: Your Honor, may I briefly respond?
15 It will be very short. I can be short.
16 THE COURT: All right.
17 MR. MILLER: All right.
18 THE COURT: I don't normally allow a response, but
19 I want to be sure you are heard, Mr. Miller. Say whatever
20 you want to say.
21 MR. MILLER: Thank you, Your Honor. Very briefly,
22 the real nub of the case is what was his intent. The reason
23 he said what he said on the tapes. And the evidence that we
24 had prehaps wanted to have produced would have addressed
25 that specific issue in the post-trial motions. And I don't
Page 40
1 think the Court - you have ruled on that. We can't - we're
2 not - I'm not going to argue with you on that. But I think
3 the Court ought to look at the picture of things and
4 determine that less than the maximum would be appropriate.
5 THE COURT: All right. Thank you.
6 Now, let me just take these observations one at a time.
7 I did not require the government to respond because I see no
8 reason to depart downward on the motion to depart under
9 section 5H1.1 or 5H1.46 of the guidelines.
10 With regard to the first of those, the guidelines say
11 age is not ordinarily relevant in determining whether a
12 sentence should be outside the applicable guideline range.
13 5H1.4 says the same thing with regard to physical condition.
14 Both of those, however, would permit a departure, and I
15 do recognize that I have the discretion to depart. Both of
16 those would permit a departure in the extraordinary case if,
17 for example, Mr. Hayes were elderly and infirm, as 5H1.1
18 says or if he had an extraordinary physical impairment as
19 5H1.4 says.
20 He is neither elderly nor infirm, nor does he have an
21 extreme estraordinary physical impairment. Therefore the
22 Court will not depart downward. However, I do note that he
23 has some physical problems. We are, as we are sitting in
24 Lexington now, just a few miles from the Federal Medical
25 Center here. And I do note that he has had some physical
Page 41
1 problems and I will address that in the sentence.
2 So that first - that motion to depart is denied.
3 With regard to the range of sentence, Mr. Hatfield is
4 correct, 5G1.1 in the guidelines says under section A,
5 quote, where the statutorily authorized maximum sentence is
6 less than the minimum of the applicable guideline range, the
7 statutorily authorized maximum sentence shall be the
8 guideline sentence. Therefore, there is really not much
9 dispute about that.
10 Notwithstanding the - it's a rather creative argument -
11 the Court will then not use the guideline range but will
12 defer rather to the statutory sentence.
13 Finally, with regard to obstruction of justice, it is
14 tempting in this case to range rather broadly and talk
15 generally about Mr. Myers or about the CIA and so forth.
16 However, this boils down to Mr. Hayes versus the tapes. And
17 Mr. Hayes testified, I heard all - I believe it was nine
18 tapes and I heard what was on there. Mr. Hayes admitted
19 saying what was on there, he just had a different version
20 for his intent.
21 I will note that I believe Mr. Hayes was not telling the
22 truth when he testified that he had not discussed with
23 Lawrence Myers the notion of getting someone to do a job for
24 him. I can't remember the phrase that was used, but it was
25 basically that he wanted a hit man. And I have to credit
Page 42
1 Mr. Myers for that, because the later call to Mr. Hayes from
2 the FBI occurred. And because when the call from Don
3 Yarbrough did occur, Mr. Hayes immediately started engaging
4 in the conversations about the - about the requested hit.
5 So I do credit that - that testimony, or I should say I
6 discredit Mr. Hayes' testimony whether he was asked whether
7 he had discussed the matter with Lawrence Myers.
8 Now, parenthetically, let me note that I'm not satisfied
9 Lawrence Myers was fully truthful at this trial. Nothing I
10 say should indicate that I believe everything Lawrence Myers
11 said. I discredit Mr. Hayes' testimony on that particular
12 point only because later events which I have just recounted
13 prove that Mr. Hayes was not - was not telling the truth.
14 But I don't think I have to talk about Mr. Myers'
15 credibility overall as a witness. Nor do I think I have to
16 address whether Mr. Hayes is, ever has been or ever will be
17 an operative for the CIA. I think the broad issue of
18 Mr. Myers' credibility and the broad issue of whether
19 Mr. Hayes is now or ever has been a CIA operative are
20 essentially red herrings. They are not the issue in this
21 case.
22 I do have to make specific findings with regard to
23 obstruction of justice. I think the obstruction of justice
24 enhancement should be applied here. I have reviewed in
25 anticipation of this hearing Mr. Hayes's testimony. And I
Page 43
1 will point out that in addition to his denial that he had
2 ever discussed with Lawrence Myers this whole notion of
3 killing his - his son, that is Mr. Hayes' son, there are
4 other specific areas of his testimony that were not
5 truthful.
6 He testified specifically that he suspected that this
7 call from Don from Alabama was a setup. The Court
8 discredits that.
9 He testified that he hoped or figured that he would be
10 able to put on the FBI - and this is at page 197 of the
11 transcript - put on the FBI and get them caught in a trap.
12 In other words, in trying to hire out for murder, I thought
13 I would give them some nice present. The Court discredits
14 that testimony.
15 At pages 201 and 202 and on into 203 of Mr. Hayes'
16 testimony, Mr. Hayes is asked whether it sounds on the tapes
17 as though he's part of a scheme. And Mr. Hayes answers:
18 Well, a lot of it I'm pumping him, I'm just letting him get
19 deeper. As the man said, he thought he was being a good
20 actor, but I can show you numerous times where the man
21 messed up on stuff he was saying. He wasn't playing the
22 part very well.
23 Did you ever have intention of harm coming to your son,
24 Mr. Hayes?
25 And his response was: No, sir, not then, now or ever.
Page 44
1 Question: Do you fear for the safety of your son as a
2 result of any of your actions here, sir?
3 Answer: No, sir, none.
4 Question: And why not?
5 Answer: He was never in danger, nothing ever going to
6 come of it.
7 Question: Did you know that?
8 Answer: Sure.
9 Then on page 204 the Court also discredits this
10 testimony by Mr. Hayes.
11 Question: There was a question advanced by Mr.
12 Yarbrough as to whether you wanted the body found or not.
13 What's that about?
14 Answer: Well, very simple. Anybody, and I'm sure that
15 everybody just about knows that a person goes missing, they
16 are not legally declared dead for seven years, or five or
17 seven years. That would show that it was preposterous to
18 start with, because it would have advantaged nobody's point
19 of view. If and when and which has happened here, if it
20 reversed on me, I could show what I was doing.
21 The Court also discredits the testimony at pages 212 and
22 13 where Mr. Hayes denies he was ever a threat to his son
23 and denies that he talked with anyone aside from
24 Mr. Yarbrough about this.
25 The Court also discredits Mr. Hayes' testimony on page
Page 45
1 213 that he believed all along this Mr. Yarbrough was an
2 agent. And the Court discredits Mr. Hayes' testimony that
3 he did not believe Mr. Yarbrough would bring harm to his
4 son.
5 Then I think there is one more instance here. I don't
6 know which tape, but it was one of the ones toward the end
7 where Don Yarbrough called Mr. Hayes and said the weather in
8 Alabama was good, and that was an agreed-upon code phrase
9 between Mr. Hayes and Don. And this testimony is at pages
10 65 and 66 of day five of the transcript.
11 Question: Now, your next conversation with Don was on
12 October 21st. And that's when Don called you and told you
13 the weather in Alabama was absolutely gorgeous, correct?
14 Answer: I believe that was the statement.
15 Question: And you inquired about him if he was sure or
16 not. So you were inquiring about whether or not he was sure
17 the job had been done, yes or no?
18 Answer: No, sir. No, sir, I was sitting there having
19 some fun out of him because I knew it had been - it had not
20 been done.
21 Those are the areas of Mr. Hayes' testimony which the
22 Court specifically discredits.
23 As I said, with regard to guilt or innocence and with
24 regard to obstruction of justice, the issue is not Myers,
25 the issue is not the CIA, the issue is Mr. Hayes versus the
Page 46
1 tapes. And the Court discredits Mr. Hayes' theory about
2 these tapes. So that objection is denied as well.
3 Let me just check my notes here.
4 All right. Now, having said that, let me say that the
5 Court will adopt the factual findings and guideline
6 applications that are set out in the presentence
7 investigation report. Based upon that, the Court finds that
8 the appropriate sentencing guideline range would normally be
9 151 to 188 months, based upon a total offense level of 34
10 and a criminal history category of 1. However, in this
11 particular instance, the statutory maximum sentence is 120
12 months. And pursuant to section 5G1.1(a) of the guidlines
13 the Court declines to impose a sentence within the guideline
14 range and defers rather to the statutory maximum.
15 So pursuant to the Sentencing Reform Act of 1984, it is
16 the judgment of this Court that the defendant Chalmer Hayes
17 is hereby committed to the custody of the Bureau of Prisons
18 to be imprisoned for a term of 120 months. The Court will
19 require that he begin service of his sentence immediately,
20 and he shall forthwith be transported to the Federal Medical
21 Center in Lexington to begin service of his 120 month
22 sentence. The Court will require his immediate
23 transportation to the Federal Medical Center so that he may
24 be medically evaluated and may be medically monitored,
25 pending his ultimate designation by the Bureau of Prisons.
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1 Upon release from imprisonment, the defendant shall be
2 placed on supervised release for a term of two years.
3 Within 72 hours of release from custody by the Bureau of
4 Prisons, the defendant shall report in person to the
5 probation office in the district to which he is released.
6 While on supervised release, the defendant shall not
7 commit another federal, state or local crime, shall comply
8 with standard probation conditions, which will be given to
9 you and explained to you, Mr. Hayes, and the defendant shall
10 comply with these additional conditions:
11 First, the defendant shall not illegally possess a
12 controlled substance.
13 Based upon the Court's findings, excuse me, the
14 defendant does not possess a history of substance abuse and
15 therefore any drug testing condition is suspended.
16 The defendant also shall not possess a firearm or
17 destructive device.
18 It is further ordered that the defendant shall pay
19 immediately to the United States a special assessment of
20 $100. If the defendant is unable to pay immediately, the
21 defendant shall participate in the inmate financial
22 responsibility program during the period of incarceration.
23 The Court further finds that the defendant does not have
24 the financial ability to pay a fine and the Court will
25 therefore waive the fine in this case.
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1 That is the sentence which I propose to impose,
2 Mr. Miller. Other than those which you have stated, do you
3 have any objection to that sentence?
4 MR. MILLER: Other than those we've stated, none,
5 Your Honor.
6 THE COURT: Mr. Hatfield, any objection?
7 MR. HATFIELD: No, Your Honor.
8 THE COURT: Very well. The sentence is imposed as
9 stated. I will ask the Court to read Mr. Hayes his appeal
10 rights. And Mr. Hayes you need to listen this, please.
11 THE CLERK: You are now notified by this Court
12 that you have a right to appeal your case to the Sixth
13 Circuit Court of Appeals, which on proper appeal will review
14 this case and determine that there has or has not been error
15 of law. If you do not have sufficient money to pay for the
16 appeal, you have a right to apply for leave to appeal in
17 forma pauperis, which means you may appeal without paying
18 for it. If you are without the services of any attorney and
19 desire to appeal and so request, the clerk of this Court
20 shall prepare and file forthwith notice of appeal in your
21 behalf. This notice of appeal must be filed within 10 days
22 from the date of entry of this judgment.
23 If you do not have sufficient funds to employ a lawyer,
24 the Court of Appeals may appoint your present lawyer or
25 another to prosecute the appeal for you. You may request to
Page 49
1 be released on a reasonable bond pending the appeal.
2 THE COURT: Mr. Hayes, did you hear and understand
3 what she just read to you?
4 DEFENDANT HAYES: Yes, ma'am.
5 THE COURT: All right. I would like for you to
6 sign a notice acknowledging that you were advised of your
7 notice of right of appeal. And there is a copy there for
8 your record as well.
9 MR. MILLER: Your Honor, in that regard, Mr. Dean
10 and I are here, and because of problems out of anybody's
11 control, Mr. Hayes wasn't able to get here early. We were
12 here early to talk to him. There were two individuals that
13 have been on his visiting list working with us, getting
14 funds for transcripts we ordered and stuff like that.
15 What I would like to be able to do is be able to take
16 Mr. Dean, Mr. Hayes, and myself and Ms. Hellman and
17 Ms. Philpot, who have worked on those specific issues with
18 us, and sit down and explain what's going on so they would
19 know what's happening and they can get the funding together.
20 We have so many days to file a notice, so many days to file
21 an appeal. We have to deal with ordering transcripts and
22 all of that kind of mess. And they are the ones who have
23 been working with us on that.
24 I took a period of eight days to get him on the phone
25 last, starting with Monday a week ago until this past
Page 50
1 Tuesday. Notwithstanding the problems we had before, the
2 order you entered when we were in court in April, somehow a
3 block had gotten on it again. It was an interesting mess,
4 but it was a real mess.
5 THE COURT: Let me just cut to the chase here,
6 Mr. Miller. You will be afforded some time now to speak
7 with your client. The marshals can give you a room in which
8 you may visit with him, you and Mr. Dean. And if you have
9 people who are working with you, I understand that, but that
10 will be up to the marshals to determine exactly how to - how
11 to work that out right now.
12 You take some time now while you are here in
13 Lexington --
14 MR. MILLER: Right.
15 THE COURT: -- to visit with him and to make
16 whatever arrangements you need - you need to make. I am not
17 inclined to allow large groups of people in.
18 MR. MILLER: No, no.
19 THE COURT: And I would think that the attorneys
20 and one or perhaps two assistants would be sufficient.
21 MR. MILLER: That's all we are asking for, Your
22 Honor.
23 THE COURT: Okay. Are there any other issues that
24 we need to address?
25 MR. MILLER: Yes, Your Honor. You have authority
Page 51
1 to make a recommendation of the Lexington medical facility.
2 THE COURT: Is that the recommendation you want me
3 to make?
4 MR. MILLER: Yes.
5 THE COURT: All right. That's the recommendation
6 I will make. In the alternative, do you wish me to
7 designate or to request that the designation be made in a
8 facility closest to his home in?
9 THE COURT: The medical facility closest to his
10 home?
11 MR. MILLER: No, Your Honor.
12 THE COURT: All right. I will request that the
13 Bureau of Prisons assess Mr. Hayes medically in order to
14 determine whether he should be placed in a medical facility.
15 I will recommend that he be placed in the Federal Medical
16 Center in Lexington. In the event that he is placed in a
17 Federal Medical Center but is not placed in Lexington, I
18 recommend that he be placed in the facility nearest his
19 home. In the event that he is not designated to a federal
20 medical center, I will request that he be placed in the BOP
21 facility nearest his home. I think that covers all the
22 bases.
23 MR. MILLER: Thank you.
24 THE COURT: Anything else, Mr. Miller?.
25 MR. MILLER: No, Your Honor.
Page 52
1 THE COURT: Mr. Hatfield, have I overlooked
2 anything on behalf of the government?
3 MR. HATFIELD: Nothing I am aware of, Your Honor.
4 THE COURT: All right. Mr. Hayes, I wish you
5 luck. I - I hope that you will find some opportunity here
6 and take advantage of it, and I wish you luck.
7 I will ask the marshal to announce a recess of the Court -
8 or actually to announce that court is adjourned today.
9 (A recess was had at 3:14 p.m.)
10 CERTIFICATE OF REPORTER
11 I, Nathan F. Perkins, official court reporter for the
United States District Court, do hereby certify that the
12 foregoing is a true and correct transcript of the proceedings
had in the above-described action.
13
14 _____________________________________
Nathan F. Perkins Date
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Chuck Hayes
Articles
