U.S. v. Dyess, No. CRIM. 2:99-00012-01, CRIM. 2:99-00012-03, CRIM. 2:99-00012-10, CRIM. 2:99-00012-12.
| Court | United States District Courts. 4th Circuit. Southern District of West Virginia |
| Writing for the Court | Haden |
| Citation | 293 F.Supp.2d 675 |
| Parties | UNITED STATES of America, Plaintiff, v. Calvin DYESS, Eric Dewayne Spencer, Michael Jason Bartram, and Orange Dyess, Defendants. |
| Decision Date | 17 December 2003 |
| Docket Number | No. CRIM. 2:99-00012-01, CRIM. 2:99-00012-03, CRIM. 2:99-00012-10, CRIM. 2:99-00012-12. |
v.
Calvin DYESS, Eric Dewayne Spencer, Michael Jason Bartram, and Orange Dyess, Defendants.
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John Hackney, Jr., Law Office of John Hackney, Jr., Charleston, WV, Jane Moran, Williamson, WV, for Calvin Douglas Dyess.
Calvin Douglas Dyess, pro se, Beaumont, TX.
Thomas J. Gillooly, Charleston, WV, for Eric Dewayne Spencer.
Eric Dewayne Spencer, pro se, Lexington, KY.
Michael Jason Bartram, pro se, Ashland, KY.
Robert Allen Ratliff, Roberts Shields & Green, Mobile, AL, for Michael Jason Bartram.
Orange Dyess, pro se, Ashland, KY.
Dennis H. Curry, Spencer, WV, for Orange Dyess.
Michael J. Elston, Sp. Atty., Kimberly R. Pedersen, Sp. Atty., Brian D. Miller,
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U.S. Dept of Justice, Alexandria, VA, for U.S.
HADEN, District Judge.
Pending are Defendants' motions for various forms of relief in this case, which was remanded from our Court of Appeals before decision on direct appeal.
A. Criminal Cases
On February 17, 1999 a federal grand jury in this district returned a thirteen-count Superseding Indictment charging Calvin Douglas Dyess (Calvin), Eric Dewayne Spencer (Spencer), Orange Dyess (Orange), Michael Jason Bartram (Bartram) and nine co-defendants with conspiracy to distribute and possess with intent to distribute cocaine base, cocaine and marijuana and additional various drug-related crimes, the income from which was estimated to exceed three million dollars. Rachel Ursala Dyess (Ursala), Calvin's wife, was named as an unindicted co-conspirator in the conspiracy count. Ursala and Calvin were charged in Count 3 with money laundering.1
On March 30, 1999 Ursala pled guilty to Count 3 of the Superseding Indictment, conspiracy to launder money. On April 23, 1999 Bartram pled guilty to a one-count information charging distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). On April 21, 1999 Calvin pled guilty to Counts Two and Three, conspiracy to distribute drugs and launder money. On the same date Spencer pled guilty to Count Two, the drug conspiracy. On April 28, 1999, the day trial was scheduled, Orange pled guilty to a one-count information charging him with maintaining a place for manufacture and distribution of cocaine base, cocaine and marijuana in violation of 21 U.S.C. § 856(a)(1).
Ursala was sentenced on November 8, 1999. Under the United States Sentencing Guidelines (U.S.S.G.), her total offense level was 18, Criminal History Category II, and she faced a sentence range of 30 to 37 months. The Government moved for a sentence reduction based on substantial assistance. Lead investigator Detective William H. Hart (Hart) testified in support of the substantial assistance motion. According to the Memorandum of Sentencing Hearing:2
[Hart] related that [Ursala] voluntarily provided information with regard to her husband, Calvin Dyess' whereabouts, she cooperated from December of 1998 providing significant information with regard to assets, in particular, a motorcycle and $300,000 in cash. He testified she also provided information with regard to Orange Dyess. Detective Hart testified that this was the first time that
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he had ever given testimony in support of a downward departure in all his years in law enforcement.
In lieu of incarceration, Ursala was placed on five years' probation with the first six months on home confinement with electronic monitoring.
Bartram was sentenced July 26, 1999. At sentencing he withdrew his objection to relevant conduct calculations of drug amounts in the Presentence Investigation Report (PSR) and, through his counsel, acknowledged responsibility for a drug quantity in excess of 150 grams of cocaine base. No evidence was presented at the hearing. Bartram's only remaining objection was to the PSR's recommendation denying credit for acceptance of responsibility. The Court sustained that objection and granted the credit. Bartram was sentenced within the Guideline range to 132 months incarceration, a three-year term of supervised release, a two thousand dollar ($2,000.00) fine and $100 special assessment.
On August 25 to 26, 1999 a contested sentencing hearing was held for Calvin, Orange and Spencer. The witnesses at that hearing included Ursala, Benjamin Green (indicted separately), Lori Nicole Cummings, and Hart and his partner, George Henderson, the Charleston police detectives who were DEA task force agents on this case. After two days of testimony, on August 26 Calvin was sentenced to life imprisonment and a twenty-five thousand dollar ($25,000.00) fine on Count Two and, on Count Three, 108 months imprisonment concurrent with the sentence on Count Two. Orange was sentenced to 235 months imprisonment, a three-year term of supervised release, and directed to pay jury costs incurred because he pled the day of trial. Spencer was sentenced to 262 months imprisonment, five years supervised release, and a ten thousand dollar ($10,000.00) fine.3 The sentences imposed were all within the guideline ranges determined at sentencing.
Calvin, Spencer, Orange and Bartram timely noticed appeals, which were later consolidated by the Fourth Circuit for purposes of briefing and oral argument.
B. Government Disclosures: Ursala's Allegations
Beginning on April 29, 2002 while these cases were still on direct appeal, the United States made a series of disclosures pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),4 of materials demonstrating that lead investigator Hart engaged in a personal relationship with Ursala Dyess, which began in early 1999. Ursala subsequently divorced Calvin and she and Hart were married in July 2001.5 By December 2001 Hart and Ursala were in the process of divorce. On December 10, 2001 Ursala met with an FBI special agent in the presence of a United States Attorney and Ursala's counsel. In the interview, Ursala alleged she and Hart began a personal and sexual
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relationship in approximately February 1999. According to Ursala, Hart encouraged her to lie to the Court, brought her statements of other witnesses to memorize and coached her testimony. When Ursala was given a polygraph in early February 1999 concerning whether she had retained any drug assets,6 she failed the examination, but Hart withheld the findings from the United States Attorney. Ursala further alleged that when she provided eighty thousand dollars ($80,000.00) in drug assets to Hart and his partner, Detective George Henderson, Hart allowed her to keep for her own use approximately twenty-seven thousand dollars ($27,000.00). On February 4, 1999 Hart turned in forty-one thousand six hundred thirty dollars ($41,630.00) to the United States. According to Ursala's version, eleven thousand three hundred seventy dollars ($11,370.00) of the eighty thousand dollars ($80,000.00) remains unaccounted for.
The disclosures confirm Ursala, at Hart's request, was given a polygraph on February 2, 1999. The test results, which indicated deception, were not disclosed by Hart to the United States Attorney until December 11, 2001. Hart later admitted allowing Ursala and co-defendant Ben Green to keep some amount of money. Hart's partner Henderson confirmed they allowed Ursala to keep money, which he estimated did not exceed three thousand dollars ($3000.00).
Also among the disclosures are FBI interviews with Ursala in which she claimed Hart told her he would make sure Calvin would never get out of jail or hurt her. According to Ursala, Hart also promised her she would not go to jail because he was the lead officer in the case and could do whatever he wanted. After Ursala was sentenced to probation, she alleges Hart later threatened he had obtained probation for her and he could get her taken off probation. The majority of the disclosures containing these allegations were made between April 29 and July 30, 2002.7
C. Action on Remand
On August 28, 2002 the Fourth Circuit Court of Appeals remanded these consolidated cases, directing:
In view of the filing by the United States on April 29, 2002 of some 126 pages of documents styled "Disclosure by the United States," it is ADJUDGED and ORDERED that this case shall be, and it hereby is, remanded to the district court to conduct such further proceedings as it may deem appropriate.
United States v. Dyess, Nos. 99-4566, 99-4665, 99-4666, 99-4667 (4th Cir. Aug. 28, 2002) (Remand Order).
On remand, Defendants Calvin, Spencer and Bartram initially moved to recuse or disqualify the United States Attorney's office
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for the Southern District of West Virginia. The Court noted:
[t]his case presents questions of ethical conduct and the appearance of impropriety in a disturbing factual scenario, which is unprecedented in this Court's experience. The lead AUSA who prosecuted this case also managed case agents and witnesses who allegedly (and by their own admissions) stole drug proceeds, suborned perjury, lied under oath, and tampered with witnesses.
United States v. Dyess, 231 F.Supp.2d 493, 495 (S.D.W.Va.2002). The Court emphasized:
that at this time there are no allegations of improprieties or misconduct by the U.S. Attorney's Office, in general, or by [lead prosecutor] Ms. Schwartz, in particular. The Court's action is not predicated on such wrongdoing, or even the possibility of such wrongdoing. Not impropriety, but the potential appearance of impropriety motivates the decision.
Id. at 497. On that basis, the Court disqualified the office of the United States Attorney for this district. The Department of Justice appointed the...
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United States v. Dyess, 11–7335.
...quantity, at any resentencing this Court is limited to the twenty-year statutory maximum of § 841(b)(1)(C).” United States v. Dyess, 293 F.Supp.2d 675, 693 (S.D.W.Va.2003). I would find that our silence on the matter in such an extraordinary case was an oversight that permits us to proceed ......
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State v. Harris, 02-2433-CR.
...has no constitutional right to the disclosure of impeachment information before entering a plea agreement"); United States v. Dyess, 293 F. Supp. 2d 675, 688 (S.D.W.Va. 2003) (recognizing that the Ruiz decision forecloses any argument that a defendant is entitled to impeachment information ......
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OUTRAGEOUS GOVERNMENT (MIS)CONDUCT: DUE PROCESS AS A DEFENSE IN PAID-SEX STING OPERATIONS.
...and Outrageous Government Conduct defenses due to the defendant's confusion and conflation of them); United States v. Dyess, 293 F. Supp. 2d 675, 683 n.13 (S.D. W. Va. 2003) ("While conflated in their origins, the doctrines of entrapment and outrageous government conduct are different and d......
-
United States v. Dyess, 11-7335
...quantity, at any resentencing this Court is limited to the twenty-year statutory maximum of § 841(b)(1)(C)." United States v. Dyess, 293 F. Supp. 2d 675, 693 (S.D. W. Va. 2003). I would find that our silence on the matter in such an extraordinary case was an oversight that permits us to pro......
-
United States v. Dyess, No. 11–7335.
...quantity, at any resentencing this Court is limited to the twenty-year statutory maximum of § 841(b)(1)(C).” United States v. Dyess, 293 F.Supp.2d 675, 693 (S.D.W.Va.2003). I would find that our silence on the matter in such an extraordinary case was an oversight that permits us to proceed ......
-
State v. Harris, No. 02-2433-CR.
...has no constitutional right to the disclosure of impeachment information before entering a plea agreement"); United States v. Dyess, 293 F. Supp. 2d 675, 688 (S.D.W.Va. 2003) (recognizing that the Ruiz decision forecloses any argument that a defendant is entitled to impeachment information ......
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United States v. Dyess, No. 11-7335
...quantity, at any resentencing this Court is limited to the twenty-year statutory maximum of § 841(b)(1)(C)." United States v. Dyess, 293 F. Supp. 2d 675, 693 (S.D. W. Va. 2003). I would find that our silence on the matter in such an extraordinary case was an oversight that permits us to pro......
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Spencer v. United States, Civil Action No. 2:08-01390
...if necessary, cleansed of the tainted evidence, should cure any prejudice engendered by Hart's malfeasance." United States v. Dyess, 293 F. Supp. 2d 675, 686 (S.D. W. Va. Dec. 17, 2003). Judge Haden also denied the defendants' motion to withdraw their guilty plea, correctly noting that the ......
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OUTRAGEOUS GOVERNMENT (MIS)CONDUCT: DUE PROCESS AS A DEFENSE IN PAID-SEX STING OPERATIONS.
...and Outrageous Government Conduct defenses due to the defendant's confusion and conflation of them); United States v. Dyess, 293 F. Supp. 2d 675, 683 n.13 (S.D. W. Va. 2003) ("While conflated in their origins, the doctrines of entrapment and outrageous government conduct are different and d......