U.S. v. McGee, 00-CR-105-H.

Citation326 F.Supp.2d 1228
Decision Date03 December 2002
Docket NumberNo. 00-CR-105-H.,00-CR-105-H.
PartiesUNITED STATES of America, Plaintiff, v. Malcom Derome McGEE, Defendant.
CourtUnited States District Courts. 10th Circuit. Northern District of Oklahoma

Malcom Derome McGee, Pollock, LA, Paul D Brunton, Jack (John B) Schisler, Federal Public Defender's Office, Robert Russell Nigh, Jr, Brewster & De Angelis PLLC, Tulsa, OK, Thomas D McCormick, Oklahoma City, OK, for Malcom Derome McGee.

ORDER

HOLMES, District Judge.

This matter comes before the Court for sentencing of Defendant Malcom Derome McGee in accordance with the opinion of the Tenth Circuit Court of Appeals entered May 29, 2002.

On November 1, 2000, following three days of trial, Mr. McGee was convicted under a three-count Indictment. The sole remaining issue is whether to sentence Mr. McGee for a single violation of 21 U.S.C. § 843(b) pursuant to his conviction under Count Three of that Indictment.

I

The procedural history of this case has been addressed at length with the parties and is set forth in detail in the Court's order of October 22, 2002 (the "Order"). A copy of the Order is appended hereto as Attachment 1.

Pursuant to the Order, the Court requested the parties to respond, inter alia, to the following question:

1. Whether the law of the Tenth Circuit is as follows:

i. With respect to a one-count indictment that refers to multiple violations of federal law, a defendant can only be sentenced for a single violation because a "count" in an indictment can, under no circumstances, result in more than a single violation;

ii. this is true even if evidence of multiple violations is adduced at trial without objection, the question is posed to the jury on a verdict form without objection, and the jury returns a verdict of multiple violations without objection; and

iii. an indictment that includes a count of unlawful use of a telephone or other communication device, but that fails to identify the specific telephone call charged, does not give adequate notice of which telephone call forms the basis of the alleged violation at issue.

The Government responded that the answer on behalf of the United States was "yes" to questions (i) and (ii); the answer on behalf of the United States was "no" to question (iii). The United States' responses to these questions are hereby acknowledged for the record. For the reasons set forth in the Order, the Court disagrees with the United States with respect to questions (i) and (ii).

II

The Court believes that every attorney has a duty to ensure the integrity of the appellate process. As fully described in the Order, the Court finds that the attorneys failed to meet that duty here. The basis for the Court's decision, as well as relevant portions of the record, including Court orders, were never presented to the appellate Court. The issue was misstated by Petitioner, and confessed by the United States, and the materials submitted by the parties did not accurately reflect the record in the case. As a result, the Court of Appeals was never given the opportunity to consider this Court's decision and, more importantly, the question of law embodied in that decision. The parties' actions caused the system to fail, and the attorneys must consider their respective responsibilities to the legal system to avoid any such failure in the future.

III

The Court further believes that every judicial officer has a duty to ensure the integrity of the appellate process. First, the Court must give all parties a full and fair opportunity to make a record before the trial court, and to frame issues for possible appeal. In addition, the Court has a high burden to fully explain the bases for its decisions. In this regard, the parties and the Court share a mutual obligation to record each matter of disagreement and to expressly identify the legal and factual basis for such disagreement.

A further responsibility of this Court to the appellate process is involved in this case — the responsibility to respect and implement the mandate of the Court of Appeals. In a case in which the parties failed to discharge their duty to the Court of Appeals, the Court should not further dishonor the appellate process by disregarding the mandate. In short, two wrongs do not make a right.

Sentencing in this matter is set for December 4, 2002, at 9:30 a.m., at which time Mr. McGee will be sentenced for a single violation of 21 U.S.C. § 843(b).

IT IS SO ORDERED.

ATTACHMENT 1

(to Order of December 3, 2002)

ORDER

On April 5, 2001, the Court sentenced Defendant Malcom Derome McGee, inter alia, to a term of imprisonment of 56 years pursuant to a jury verdict finding beyond a reasonable doubt that Defendant committed seven (7) separate violations of 21 U.S.C. § 843(b). Judgment was entered in the case on April 19, 2001, and Defendant McGee filed his notice of intent to appeal on April 27, 2001. By judgment filed May 29, 2002, the Court of Appeals for the Tenth Circuit reversed the sentence imposed by the Court and remanded the case for resentencing. A hearing was scheduled for October 4, 2002.

On August 19, 2002, the Court directed the attorneys of record for the October 4 hearing as follows:

... to file, no later than September 27, 2002, a detailed joint statement of the case setting forth all relevant facts, pleadings (including the indictment), excerpts from pleadings, colloquies, instructions, verdicts and motions in this matter pertaining to the issue of the sentencing of defendant McGee for seven (7) separate violations of Title 21 U.S.C. § 843(b). Such statement shall describe all the relevant events and rulings in chronological order. The indictment, all orders entered by the court, and all statements contained in transcripts of Court proceedings shall be quoted in their entirety as they relate to this issue.

(08/19/92 Order.)

On September 27, 2002, the parties filed a document entitled "Joint Statement of the Case." On September 30, 2002, the Court issued an order explaining that the signatories'1 had failed to comply with the Court's August 19, 2002, order and directed the signatories to cure their failure by submitting a complying document no later than noon on October 3, 2002. On October 3, 2002, the parties filed a "Supplemental Joint Statement of the Case." At the hearing on October 4, the Court noted that this document also failed to comply with the Court's August 19 order. On October 15, 2002, pursuant to the Court's order of October 4, 2002, the signatories filed a "Second Supplemental Joint Statement of the Case." A copy of that document is attached hereto as Appendix 1.

Based on the record in the case, the Court finds as follows:

1. On August 8, 2000, the Grand Jury in the Northern District of Oklahoma returned a three-count Indictment (the "Indictment") against Malcom McGee, which provided in applicable part as follows:

Count I

[21 U.S.C. § 846]

Beginning in or around July, 2000, the exact date being unknown to the Grand Jury, and continuing until July 15, 2000, in the Northern District of Oklahoma, and elsewhere, MALCOM DEROME McGEE, aka "Malik", aka "Mike McGee", defendant herein, did knowingly and intentionally conspire, confederate and agree with others, both known and unknown to the Grand Jury, to commit offenses against the United States, in violation of Title 21, United States Code, Section 846, as follows:

* * * * * *

2. To use interstate communication facilities, that is a telephone, in committing and/or causing, or facilitating the commission of acts constituting a felony under Title 21, United States Code, Section 841(a)(1), in violation of Title 21, United States Code, Section 843(b).

* * * * * *

MEANS AND METHODS OF THE CONSPIRACY

The objects of the conspiracy would be accomplished and were accomplished as follows:

* * * * * *

3. The Defendant MALCOM McGEE, and others known and unknown to the Grand Jury, would and did utilize telephones (cellular and otherwise), and paging devices, in order to communicate with others regarding the possession and delivery of the Phencyclidine (PCP).

OVERT ACTS

To effect the objects of the conspiracy, the defendant and other co-conspirators committed various overt acts within the Northern District of Oklahoma and elsewhere, among which were the following:

* * * * * *

10. Between on or about July 14 and 15, 2000, the courier placed a series of telephone calls from Tulsa, Oklahoma to MALCOM McGEE, the defendant herein, via cellular telephone number and pager number that McGEE had provided. MALCOM McGEE, the defendant herein, also placed a series of telephone calls to the courier while located in Tulsa, Oklahoma, within the Northern District of Oklahoma. The purpose of the telephone calls was to discuss the possession and delivery of the Phencyclidine (PCP). During these calls, the need for money by the courier was discussed. It was further discussed that MALCOM McGEE, the defendant herein, would be traveling to Tulsa, Oklahoma to take possession and delivery of the 2000 milliliters of Phencyclidine (PCP).

* * * * * *

COUNT THREE

[21 U.S.C. § 843(b)]

On July 14, and 15, 2000, in the Northern District of Oklahoma, MALCOM McGEE, defendant herein, did knowingly, intentionally, and unlawfully use a communication facility, that is a telephone, in committing, causing, and facilitating the commission of an act constituting a felony under Title 21, United States Code, Section 841(a)(1), in that the defendant used the telephone to discuss various matters concerning Schedule III Controlled Substance. All in violation of Title 21, United States Code, Section 843(b).

2. The Indictment did not limit the charge to a single telephone call or a single violation of the statute, but instead plainly referred to multiple telephone calls over a period of two days. The Indictment did not identify any specific telephone call as forming the basis for an alleged violation of 21 U.S.C. § 843(b).

3. Defendant did not object to the Indictment as providing insufficient notice of the...

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