United States v. Butler

• Decision Date: 24 March 1980
• Docket Number: B-79-10-CR.,Crim. No. B-79-1-CR
• Citation: 486 F. Supp. 1285
• Parties: UNITED STATES v. Willis Judge BUTLER, Lester Wallick Fuller, Dayton Bud Evans, Larry Dale Washington. UNITED STATES v. Robert HAMM.
• Court: U.S. District Court — Eastern District of Texas

486 F. Supp. 1285

UNITED STATES v. Willis Judge BUTLER, Lester Wallick Fuller, Dayton Bud Evans, Larry Dale Washington.

UNITED STATES v. Robert HAMM.

Crim. Nos. B-79-1-CR, B-79-10-CR.

United States District Court, E. D. Texas, Beaumont Division.

March 24, 1980.

COPYRIGHT MATERIAL OMITTED

John H. Hannah, Jr., U. S. Atty., Tyler, Tex., David P. Baugh, Asst. U. S. Atty., Beaumont, Tex., for United States.

Melvyn C. Bruder, Dallas, Tex., for Willis Judge Butler and Dayton Bud Evans.

Wendell Radford, Beaumont, Tex., for Lester Wallick Fuller.

Randolph L. Schaffer, Houston, Tex., for Larry Dale Washington.

Edward D. Foreman, St. Petersburg, Fla., for Robert Hamm.

MEMORANDUM OPINION

JOE J. FISHER, Chief Judge.

On March 4, 1980, the United States Attorney for the Eastern District of Texas moved to dismiss count 1 of the indictment in B-79-1-CR against Willis Judge Butler, Lester Wallick Fuller, Dayton Bud Evans, and Larry Dale Washington, and count 9 of the indictment in B-79-10-CR against Robert Hamm. This motion was denied by the Court in a written order and bench opinion three days later when defendants Butler, Evans, Washington, and Hamm were before the Court for sentencing on these counts. Subsequently, each of these defendants moved to withdraw his plea of guilty to the count in the indictment which the United States Attorney sought to dismiss. This motion was also denied. When defendant Fuller was ordered before the court for sentencing on March 10, 1980, for his conviction on count 1 of the indictment in B-79-1-CR, he, too, moved to withdraw his guilty plea. This motion was also denied.

Because, when mixed with the facts in this case, both the motion to dismiss of the United States Attorney and the motions of each defendant to withdraw his earlier plea of guilty raise significant legal questions, some of Constitutional dimension, the Court writes today to expound and clarify its earlier decision.

I B-79-1-CR

On November 29, 1978, several persons were arrested by the United States Drug Enforcement Administration as they were in the process of unloading approximately 40,000 pounds of marijuana from the shrimp vessel Agnes Pauline in the vicinity of Port Arthur, Texas. Among those arrested were defendants Willis Judge Butler, Lester Wallick Fuller, Larry Dale Washington, and Dayton Bud Evans.

On January 16, 1979, an indictment was filed with the United States District Court for the Eastern District of Texas charging these defendants and ten others with various drug-related crimes. In particular, defendants Butler, Fuller, Washington, and Evans were each charged in count 1 with conspiracy to violate 21 U.S.C. § 952 (importing of a Schedule I nonnarcotic controlled substance into the United States) and 21 U.S.C. § 841(a)(1) (distributing or possession of a controlled substance with intent to distribute, see 21 U.S.C. §§ 846, 963 (conspiracy)). Each of these defendants was also charged in separate counts with possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Defendants Butler and Fuller were each charged with importing a Schedule I nonnarcotic controlled substance into the United States in violation of 21 U.S.C. §§ 952, 960(a)(1). Counts alleging violations of 18 U.S.C. § 924(b) (shipping, transporting, or receiving a firearm in foreign commerce with intent to commit an offense punishable by imprisonment for more than one year) and 26 U.S.C. §§ 5861(c), 5871 (possession of an unregistered firearm) were also lodged against defendant Fuller.

At different times following their arrest, each of these defendants through their counsel negotiated plea agreements with an assistant United States Attorney. The terms in each agreement were substantially the same: in exchange for a plea of guilty to conspiracy to possess a controlled substance with intent to distribute, see 21 U.S.C. § 846, and full cooperation with the United States in the prosecution of the case against others, the United States agreed not to prosecute the cooperating defendant for any other drug-related crimes arising out of the seizure of the shrimp vessel Agnes Pauline.¹ A rearraignment was held on February 22, 1979, when the existence of the plea agreement was brought to the Court's attention. At that time, each of these defendants was cautioned by the Court that he was under no obligation to plead guilty and that by so doing a trial by jury was waived and the Court was invested with the right to have the defendant sworn and interrogated. Before accepting the pleas of guilty, the Court found that each defendant and his counsel understood the nature of the offense charged, that each defendant's plea of guilty was made freely and voluntarily, and that each defendant was aware of the punishment the Court might assess. After the pleas of guilty were accepted, the Court found defendants Butler, Fuller, Evans, and Washington guilty of conspiracy to possess a controlled substance with intent to distribute and, as provided in the plea agreement, dismissed the remaining counts against these defendants.² In accord with his agreement, each of these defendants supplied information by giving statements to the United States.

B-79-10-CR

Due, in part, to the cooperation of defendants Butler, Fuller, Evans, and Washington, the United States Attorney was able to learn of four other related shipments of marijuana into the United States prior to the seizure of the Agnes Pauline in November 1978. As a result of this cooperation and further investigation by the Drug Enforcement Administration another indictment was returned in this Court on May 1, 1979. This indictment, more encompassing than the first, named additional defendants, among them Robert Hamm and Charles Noel Talkington, and charged violations of 18 U.S.C. § 1962(a), (d) (racketeering); 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute); 21 U.S.C. §§ 952, 960(a)(1) (importing a controlled substance into the United States); 21 U.S.C. § 848 (continuing criminal enterprise); and 18 U.S.C. § 1952(a)(3) (facilitation of interstate and foreign travel or transportation in aid of racketeering enterprises). In particular, defendant Robert Hamm was charged in count 1 of the indictment with racketeering, 18 U.S.C. §§ 1962(d), 1963(a)(1), and in counts 9 and 10 of the indictment with possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1).

As the date for trial of Robert Hamm and Charles Noel Talkington in B-79-10-CR grew near, these two defendants also decided to accept plea bargains offered by the Assistant United States Attorney. Similar to the agreement initially reached with defendants Butler, Fuller, Evans, and Washington in B-79-1-CR, defendants Hamm and Talkington each agreed to enter a plea of guilty to one count of the indictment and to cooperate fully with the United States in the investigation and prosecution of the case. The Assistant United States Attorney agreed to dismiss the remaining counts of the indictment against these defendants.³

When these agreements were made known to the Court, a rearraignment for a change of plea was held on September 10, 1979, for defendant Hamm. Again, similar to the proceedings conducted by the Court for the rearraignment of defendants Butler, Fuller, Evans, and Washington, defendant Hamm was cautioned by the Court that he was under no obligation to plead guilty and that by so doing he waived a trial by jury. Before accepting the plea of guilty, the Court found that defendant Hamm understood the nature of the offense charged, that his plea of guilty was made freely and voluntarily, and that he was aware of the punishment the Court might assess. After the plea of guilty was accepted, the Court found defendant Hamm guilty and indicated to Hamm and his counsel that it would follow the terms of the plea agreement.⁴

The Subsequent Agreements

During the summer of 1979, both defendants Butler, Fuller, Evans, and Washington and the United States apparently had second thoughts about the plea bargains that they had struck earlier. The United States hoped to use the testimony of Butler, Fuller, Evans, and Washington at the trial of the indictment in B-79-10-CR, and, for whatever reason, the Assistant United States Attorney chose to "sweeten" his agreement with these defendants by, among other things, agreeing to recommend a six-month cap on any imprisonment. The agreement was contained in a letter of June 6, 1979, to counsel for defendants Butler, Fuller, Evans, and Washington. The letter provided:

Dear Sir:

This letter will acknowledge our meeting and agreement of Saturday, June 2, 1979, regarding your client, named above.

In consideration for the continued cooperation of your client and his truthful testimony at trial, the United States agrees to enter into a Rule 11(e) Agreement with your client regarding punishment, subject to the approval of the sentencing Judge, that your client receive no more than five years, with not more than six months imprisonment, to serve. Further, the United States will extend every effort to insure the imprisonment of your client in a suitable minimum security prison where all necessary security for their personal safety may be assured.

Thank you for your usual professional attention to these matters.

Sincerely JOHN H. HANNAH, JR. UNITED STATES ATTORNEY /s/ David P. Baugh Assistant U. S. Attorney After he pleaded guilty on September 10, 1979, the United States Attorney's Office also entered into an agreement with defendant Hamm which provided that the United States Attorney would recommend a maximum sentence of two years incarceration.⁵

Defendants Fuller and Talkington were brought before the Court for sentencing on Friday, February 29, 1980. In chambers prior to the sentencing, the Court understood counsel for defendant Fuller to represent that at the time defendant Fuller pleaded guilty, the underlying plea...