US v. Ailsworth, Case No. 94-40017-01

• Decision Date: 07 May 1996
• Docket Number: 94-40017-02,Case No. 94-40017-01,94-40017-06 and 94-40017-07.
• Citation: 927 F. Supp. 1438
• Parties: UNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, George Stewart, Jr., a/k/a "Pigg," and Calvin Conway, Defendants.
• Court: U.S. District Court — District of Kansas

927 F. Supp. 1438

UNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, George Stewart, Jr., a/k/a "Pigg," and Calvin Conway, Defendants.

Case Nos. 94-40017-01, 94-40017-02, 94-40017-06 and 94-40017-07.

United States District Court, D. Kansas.

May 7, 1996.

COPYRIGHT MATERIAL OMITTED

Joseph D. Johnson, Joseph D. Johnson, Chtd., Topeka, KS, Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for Jessie Ailsworth, Jr.

F.G. Manzanares, Topeka, KS, Jerold E. Berger, Topeka, KS, for Undra P. Mock.

James G. Chappas, Jr., Topeka, KS, for Kenneth R. Torain.

Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for Arnett Louise Rice.

Matthew B. Works, Works, Works & Works, P.A., Topeka, KS, Amy C. Bixler, Alan G. Warner, Topeka, KS, for Terence J. Douglas.

Stephen W. Kessler, Topeka, KS, for George Stewart, Jr. Jeannine D. Herron, Topeka, KS, William K. Rork, Rork Law Office, Topeka, KS, for Calvin Lee Conway.

Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

The long history of this case is summarized as follows:

March 24, 1994:

The grand jury returns a twenty count superseding sealed indictment charging certain violations of 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine base), 21 U.S.C. § 841(a)(1) (possession with intent to distribute), 7 U.S.C. § 2024(b) (unlawful acquisition of food stamps), 18 U.S.C. § 924(c)(1) (use of a firearm during and in relation to a drug trafficking crime), and 26 U.S.C. § 5861(h) (receipt or possession of a firearm without serial number or other identification).

November 28, 1994:

The court commenced jury selection for the trial of Jessie Ailsworth, Jr., Undra P. Mock, George Stewart, Jr., Calvin Conway, Terence J. Douglas and Kenneth Torain. Arnett Rice, the seventh codefendant, had previously been severed from the other codefendants. See United States v. Ailsworth, 873 F.Supp. 1450 (D.Kan.1994) (explaining reasons for granting Rice's motion for severance). If convicted of all charges, each defendant faced substantial mandatory minimum sentences. During voir dire, each of the defendant's except for Torain entered plea agreements with the government.¹

In pertinent part, each of the plea agreements provides:²

4. Defendant will provide the United States Attorney's Office for the District of Kansas with a full and truthful accounting and statement of all knowledge he has concerning his involvement and the involvement of all other people known to defendant in the matters charged in the Second Superseding Indictment of this case. This will be done in the form of a complete oral debriefing by defendant, to law enforcement officials, and will be subject to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11, except that it could and would be used to impeach defendant in the event that he decided to testify in this matter, for the government or the defense.

5. Further, defendant agrees to submit to a polygraph examination and pass same for truthfulness, regarding all representations made by defendant during said oral debriefing regarding his knowledge concerning his involvement and the involvement of all other people known to defendant in the matters charged in the Second Superseding Indictment of this case.

6. Further, if called upon to do so, defendant agrees to testify truthfully and completely in the trials of other individuals involved in the offenses charged in the Second Superseding Indictment of this case.

7. In exchange for defendant's plea of guilty and his full, complete and truthful cooperation, and if necessary his testimony in this investigation, pending case, and any future cases, the United States Attorney's Office for the District of Kansas agrees to the following:

a. Dismiss the remaining counts of the Second Superseding Indictment at the time of his sentencing, and to bring no further criminal charges against defendant resulting from the activities which form the basis of the Second Superseding Indictment in this matters1;

1 The original indictment and the superseding indictment will also be dismissed.

b. If appropriate, prior to sentencing, to file a motion pursuant to U.S.S.G. § 5K1.1, to reduce his sentence to reflect his substantial assistance, if any, in the investigation and/or prosecution of another person(s) involved in this offense or other offenses; and

c. If appropriate, after sentencing, to file a motion pursuant to Fed.R.Crim.P. 35, to reduce his sentence to reflect his substantial assistance, if any, in the investigation and/or prosecution of another person(s) involved in this offense or other offenses.

8. The defendant acknowledges and understands that the decision, whether to file this motion and whether he has provided substantial assistance, is a matter that resides in the sole and exclusive discretion of the United States Attorney for the District of Kansas.

. . . . .

13. Should defendant, in the sole opinion of the United States Attorney's Office for the District of Kansas, not comply fully, truthfully and honestly with the terms of this agreement, the United States Attorney's Office for the District of Kansas shall be immediately released from its obligations hereunder and may reinstate prosecution as if no agreement had been reached.

a. Defendant is aware and understands that his willful failure to provide truthful information and testimony pursuant to this plea agreement could subject him to additional prosecution, including but not limited to charges of perjury and obstruction of justice.

14. This written Plea Agreement supersedes any and all other agreements or negotiations which the parties may have previously reached or discussed, and this written plea agreement embodies each and every term of the agreement among the parties.

April 7, 1995:

Ailsworth, Mock, Stewart and Conway file a joint motion to enforce plea agreements or in the alternative set aside pleas. The defendants argue that although they have performed their part of the bargain, the government has not.

July 20, 1995:

The court enters a memorandum and order granting in part and denying in part the defendants' "Motion to enforce plea agreements or in the alternative set aside pleas" (Dk. 495). In that memorandum and order, the court concluded that the government had not complied with the terms of the plea agreements entered with each of the defendants by asking certain questions during the polygraph examination which were either (1) not narrowly tailored to measure the truthfulness of the precise issue that was intended to be explored or (2) related to matters beyond the scope of the defendant's oral debriefing.

In pertinent part, the court's order stated: It is therefore necessary to administer a second polygraph examination, free of the infirmities of the first examination, to each of the defendants.

Each of these polygraph examinations shall be administered in the following manner:

(1) The government, with the aid of a qualified polygraph examiner, shall fashion questions based upon the debriefings provided by each of the defendants.

(2) Within ten days of the date of this order, and prior to performing the polygraph examinations, the government shall provide each of the defendants with a copy of the questions that it intends to posit during the polygraph examinations.

(3) Within three days of a defendant's receipt of that list, he shall file any objections in writing to any questions that will be asked during the polygraph examination.

United States v. Ailsworth, 899 F.Supp. 511, 520 (D.Kan.1995).

September 11, 1995:

Court enters memorandum and order overruling defendants' objections to questions to be asked during second polygraph examination. See United States v. Ailsworth, No. 94-40017-01, 02, 06-07-SAC, 1995 WL 646809 (D.Kan. Sept. 11, 1995).

October 20, 1995:

Court enters a one-page order denying the defendants' motion to stay polygraph examinations (Dk. 597). See (Dk. 600).

October 23, 1995:

A polygraph examination is administered to Conway and Stewart. The polygraph examiner concludes that Conway was being deceptive when answering relevant questions. The polygraph examiner concludes that Stewart was being truthful when answering relevant questions.

October 24, 1995:

A polygraph examination is administered to Ailsworth. The polygraph examiner concludes that Ailsworth was being truthful when answering relevant questions.

November 5, 1995:

A polygraph examination is administered to Mock. The polygraph examiner concludes that Mock was being truthful when answering relevant questions.

November 29, 1995:

Court enters memorandum and order which, inter alia, denies renewed objections to format of second polygraph examination and to polygraph examiner George Johnson. See United States v. Ailsworth, 914 F.Supp. 426 (D.Kan.1995).

December 12, 1995:

Court enters memorandum and order denying Conway's motion to reconsider rulings and to challenge polygraph results. See United States v. Ailsworth, No. 94-40017-01, 02, 06-07-SAC, 1995 WL 783623 (D.Kan. Dec. 12, 1995).

December 14, 1995:

Stewart files a "motion to compel performance of plea agreement" (Dk. 617). Prior to filing this motion, the government has apparently indicated to each of the defendants that it does not plan to file a § 5K1.1 motion on behalf of any of the defendants.

December 15, 1995:

Court enters order continuing sentencing hearing of each defendant. Court set date of December 26, 1995, for filing any motion to enforce the plea agreement or seeking alternative relief. Any defendant failing to file such a timely motion will be deemed to have waived any argument that the government has not fulfilled its obligations under the terms of the respective plea agreements.

December 21, 1995:

Conway files a "motion to compel performance of plea agreement" (Dk. 621).

December 14, 1995:

Government...