US v. Morris, Crim. No. 91-00124-A.

• Decision Date: 19 November 1993
• Docket Number: Crim. No. 91-00124-A.
• Parties: UNITED STATES of America v. Thomas MORRIS, Sr.
• Court: U.S. District Court — Eastern District of Virginia

837 F. Supp. 726

UNITED STATES of America v. Thomas MORRIS, Sr.

Crim. No. 91-00124-A.

United States District Court, E.D. Virginia, Alexandria Division.

November 19, 1993.

Helen Fahey, U.S. Atty., Christopher Supple, Spec. Asst. U.S. Atty., Alexandria, VA, for plaintiff.

John A. Keats, Fairfax, VA, for defendant.

SENTENCING MEMORANDUM

ELLIS, District Judge.

This memorandum opinion recounts the final chapter in the government's prosecution of Thomas Morris, Sr.

Morris, a sixty-five year old member of the Virginia bar, was an experienced, well-known and well-regarded Northern Virginia lawyer when he was named in a four-count indictment charging him with various drug trafficking crimes, including conspiracy to possess cocaine with the intent to distribute it.

Morris had been the lawyer for Samuel Balbuena, a drug kingpin who patterned his life after that of the title figure in the film "Scarface," and who organized and led a massive drug conspiracy responsible for distributing millions of dollars of cocaine, "crack" and marijuana throughout the Washington area for more than six years. The indictment, in essence, charged Morris with stepping over the line as a lawyer and acting instead as a knowing and willful participant in the Balbuena conspiracy and as an aider and abettor of various drug trafficking crimes. A five day trial ended with jury verdicts of guilty on all four counts. See United States v. Morris, 781 F.Supp. 428 (E.D.Va.1991). Balbuena and various other members of the conspiracy who had earlier pled guilty, testified pursuant to plea agreement obligations and the jury apparently found credible and persuasive their testimony implicating Morris in the conspiracy's illegal activities. After denying post-verdict motions, the Court sentenced Morris to a total term of imprisonment of 156 months, to be followed by five years of supervised release. Id. at 430. The Court also imposed a $25,000 fine and a $200 special assessment. Id. Because the conspiracy's activities spanned the period 1983-1989, Morris' sentence was controlled by the Guidelines. And under the Guidelines, Morris' original sentencing range was 235 to 293 months. At sentencing, however, the Court granted Morris' motion for a downward departure on alternate grounds and departed downward five levels. Thus the sentence imposed was severe, but not as severe as it might have been absent the downward departure.

Morris appealed his conviction and sentence on a variety of grounds. In reversing and remanding for a new trial, the Fourth Circuit panel rejected one ground¹ and found it unnecessary to reach others because it found plain error in the prosecutor's eliciting from Mrs. Morris that she had invoked the marital privilege before the Grand Jury. See United States v. Morris, 988 F.2d 1335 (1993).²

On remand, the government elected to retry Morris and the Court accordingly set a trial date consistent with the requirements of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. As the trial date drew near, the government, represented now by a new team of Department of Justice attorneys, sought a short continuance on the ground that additional time was needed to interview witnesses, many of whom were inmates at federal correctional facilities around the country. The Court denied the continuance and the trial commenced on schedule.

As is true more often than not, the second trial was not a carbon copy of the first. While the thrust of the government's case was the same—namely that Morris had joined and actively participated in Balbuena's drug trafficking conspiracy—other aspects of the second trial differed markedly from the first. One difference was the government's use in its case in chief of a portion of Morris' testimony from the first trial. The most significant difference was that Balbuena, although in custody in the courthouse lockup was not called to testify by either party.³ At the conclusion of the government's case, Morris, by counsel, moved for a judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P. Even without Balbuena's testimony, the thrust of the government's evidence remained the same, namely, that Morris was a knowing and willing participant in various aspects of the Balbuena drug trafficking conspiracy. Specifically, the Court found that there was ample evidence from which a reasonable jury could find, beyond a reasonable doubt each and every element of each of the indicted offenses. Accordingly, Morris' Rule 29 motion was denied. Thereafter, following Morris' case, there was no government rebuttal case and the matter was submitted to the jury on instructions essentially similar to those given in the first trial.

In the course of deliberations, the jury propounded several questions to the Court, the nature of which arguably invited the inference that the jury considered Morris guilty of conspiracy. Morris apparently elected to view these questions as the proverbial "handwriting on the wall," and sought leave to plead guilty to a non-guidelines (pre-November 1987) conspiracy charge with an agreement to limit the sentence to time already served. The Court advised Morris that it would not accept any plea involving an agreement as to sentence as permitted in Rule 11(e)(1)(C). Rather, Morris was advised that should he choose to enter a plea, he would have to take his chances that the Court would impose a more severe sentence. The Court noted, however, that a "time-served" sentence might not be inappropriate and that such a sentence would be considered, along with other possible sentences. Most importantly, the Court advised Morris that no plea would be accepted without an explicit admission of guilt from him, nor would it be accepted unless the Court was convinced that there was a sound factual basis for the plea. In this Court, Morris was told, defendants may not plead guilty to something they did not do.

In the end, Morris elected to plead guilty to a criminal information charging that he unlawfully, willfully and knowingly conspired with Balbuena and others to commit various marijuana and cocaine trafficking offenses, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In the course of the plea colloquy, Morris unqualifiedly admitted his guilt. Quite apart from this admission, the Court had no difficulty concluding that there was a sound factual basis for the plea. Indeed, based on the record of the second trial, the Court was convinced beyond a reasonable doubt that Morris had knowingly and wilfully participated in a pre-Guidelines drug trafficking conspiracy with Balbuena and others.⁴ Following allocution, the Court, without objection from the government, imposed a sentence of time served (almost two years) and a $50 special assessment.

Discerning observers will surely be struck by the disparity between the sentences imposed on Morris after the first and second trials. The Court, too, has reflected considerably on this disparity, both prior to and since the imposition of the second sentence. The fact is, the Court devoted substantial time and effort to setting an appropriate sentence in both instances. And the fact is, paradoxically perhaps, that the Court was satisfied at the time each sentence was imposed that it was a fair, just and appropriate sentence in the circumstances. Yet, the disparity demands explanation if sentencing is to be...