Charles S. Hayes Sentencing Transcript

Jump to:

1. Judge Jenny places presentencing investigation report under seal!
(Was this because the presentencing report recommended Hayes be released immediately?)

2. Martin Hatfield says it doesn't matter if government witnesses lied!
(Does David Keller still think Orlin Grabbe is a pen name for Chuck Hayes?)

3. The CIA always tells the truth!
(Twist slowly, slowly in the wind, baby.)

4. No Ted Gunderson!
(After all, it might prove our search of the records was a sham.)

5. Even more on the lies of Lawrence Myers!
(But who cares? After all, he testified for the government.)


1                    UNITED STATES DISTRICT COURT
                     EASTERN DISTRICT OF KENTUCKY
2                              LONDON

3 
  
4     UNITED STATES OF AMERICA,
                                    CRIMINAL #96-00060
5               PLAINTIFF,
  
6     VERSUS                        LONDON, KENTUCKY
                                    JULY 25, 1997
7                                   1:55 P.M.
  
8     CHALMER C. HAYES,
  
9               DEFENDANT.
  
10 
                 TRANSCRIPT OF SENTENCING PROCEEDINGS
11             BEFORE THE HONORABLE JENNIFER B. COFFMAN
                     UNITED STATES DISTRICT JUDGE
12 
   
13     APPEARANCES:
   
14          FOR THE PLAINTIFF:       MR. PATRICK MOLLOY
                                     MR. MARTIN HATFIELD
15                                   ASSISTANT U.S. ATTORNEYS
                                     110 WEST VINE ST.
16                                   LEXINGTON, KY  40507
   
17          FOR THE DEFENDANT:       MR. MARVIN MILLER
                                     ATTORNEY AT LAW
18                                   120 DUKE STREET
                                     ALEXANDRIA, VA  22314
19 
                                     MR. MICHAEL DEAN
20                                   ATTORNEY AT LAW
                                     105 SOUTH BROAD STREET
21                                   LONDON, KY  40741
       NATHAN F. PERKINS
22     OFFICIAL COURT REPORTER
       P.O. BOX 5161
23     LONDON, KY  40745
       (606) 878-8450
24 
       PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
25     PRODUCED BY COMPUTER.

Page 1

1 FRIDAY

2 JULY 25, 1997

3 1:55 P.M.

4 THE CLERK: London criminal number 96-60, United

5 States of America versus Chalmer C. Hayes.

6 THE COURT: All right. Let me see. Let the

7 record reflect that the defendant is present. He is

8 represented by his attorneys Mike Dean and Marvin Miller.

9 The United States is represented by Assistant United

10 States Attorney Martin Hatfield and Assistant United States

11 Attorney Pat Molloy.

12 First of all, before we start the sentencing, just a

13 couple of notes.

14 Mr. Miller, I note that you've filed what you've called

15 objections to the Court's not having a hearing or canceling

16 the hearing that I had scheduled. You had, of course, filed

17 some post-trial motions. I held a hearing on those, I think

18 it was April 10th of this year. You - I'm not sure you had

19 a right to a hearing, but I held it anyway. We held that in

20 London. You then renewed that motion and, frankly, I

21 scheduled a hearing on it before I ever read the papers.

22 And when I read the papers I realized that there was no need

23 for a new hearing because, as I said in the order, in terms

24 of quantity, there was more there, but qualitatively there

25 was no difference in what you were saying from what we had

 

Page 2

1 seen before. So that's why I canceled the hearing.

2 I'm not going to be preparing an order in response to

3 your objections. They are in the record. You have

4 everything there in the record.

5 I had scheduled your hearing, I guess, at the 16th, and

6 at your motion it was scheduled for the 18th before it was

7 canceled.

8 With regard to this sentencing, of course, this was

9 originally scheduled May the 2nd or thereabouts.

10 Again, the defendant's attorney asked that it be changed

11 because of the - I think that was for conducting an

12 examination of the defendant. It was rescheduled to July

13 25th in London, which is today. I - I changed the location

14 of that to Lexington for personal reasons. And I guess

15 that's - that's where we are now.

16 With regard to your - your motions, your post-trial

17 motions, I had made a ruling on those. So as far as I know,

18 there are no outstanding motions.

19 You are standing, Mr. Miller.

20 MR. MILLER: Yes.

21 THE COURT: Is there some disagreement? Is there

22 a pending motion?

23 MR. MILLER: No, Your Honor, just something I -

24 when you have completed, there is something I need to have

25 an opportunity to address to you before the Court proceeds

 

Page 3

1 to sentencing.

2 THE COURT: And that's with regard to what? With

3 regard to the sentencing?

4 MR. MILLER: No, ma'am.

5 THE COURT: All right. What does it regard?

6 MR. MILLER: You made the statement that we have

7 put in the record everything that we want, and that's

8 inaccurate. And I don't --

9 THE COURT: Well, I will tell you, I'm not going

10 to get into your motions further. The record contains what

11 it contains. I see that you have filed a - some objections,

12 and as far as I am concerned, I am overruling your motions,

13 and that's the subject of this.

14 MR. MILLER: I'm not here to argue that, I just

15 have a question to ask.

16 THE COURT: All right. What's your question?

17 MR. MILLER: My question is this. We had intended

18 to present evidence relative to the motion.

19 THE COURT: Your objection states that.

20 MR. MILLER: And without arguing that point or

21 trying to create a hassle around that, how would you prefer

22 that we proffer, or can we proffer --

23 THE COURT: Your objections state the categories

24 of evidence you intend to present. If you want to take it

25 to the Court of Appeals, you will just have to take it on

 

Page 4

1 the record as it exists now.

2 MR. MILLER: All right, Your Honor.

3 THE COURT: All right. Now, so that's against

4 that background. I guess we are here today on this

5 sentencing.

6 Mr. Hayes, would you stand, please?

7 Mr. Hayes, I have here a copy of the presentence

8 investigation report that was prepared in your case by the

9 probation office. Have you received and reviewed a copy of

10 that report?

11 DEFENDANT HAYES: Yes, I have.

12 THE COURT: And have you discussed it with your

13 attorneys to your satisfaction?

14 DEFENDANT HAYES: Yes, we have.

15 THE COURT: Do you believe you understand what's

16 in the presentence investigation report?

17 DEFENDANT HAYES: I understand what's in the

18 report, yes.

19 THE COURT: All right. Mr. Miller, have you

20 reviewed it on his behalf, discussed it with him, and are

21 satisfied that he understands?

22 MR. MILLER: Yes.

23 THE COURT: Mr. Dean, do you agree?

24 MR. DEAN: Yes, I do, Your Honor.

25 THE COURT: All right. Thank you. On behalf of

 

Page 5

1 the United States, Mr. Hatfield, Mr. Molloy, have you

2 received it and reviewed it on behalf of the United States?

3 MR. HATFIELD: Yes, we have, Your Honor.

4 THE COURT: All right. I will direct that this

5 presentence investigation report be placed in the record

6 under seal.

7 You may be seated now, if you wish. I will direct that

8 it be placed in the record under seal. If there is an

9 appeal in this case, the attorneys have will have access to

10 all portions of the report except that portion that includes

11 a recommendation from the probation office as to the

12 sentence.

13 Okay. Issues to resolve here today.

14 Mr. Miller, I have, I think, two issues to resolve. The

15 one has to do with whether two levels should be added for

16 obstruction of justice, one; and the other issue has to do

17 with whether the maximum statutory sentence applies in light

18 of the guidelines being higher than the maximum statutory

19 sentence.

20 So I will hear your arguments on both those objections,

21 if would you.

22 MR. MILLER: All right, Your Honor. Do you have a

23 preference? I have my stuff here, wherever you prefer.

24 THE COURT: I can hear you from there. And if the

25 court reporter begins to be unable to hear you, you will

 

Page 6

1 have to move to the microphone. But I can hear from you

2 there.

3 MR. MILLER: All right. I have never had anybody

4 say they couldn't hear me.

5 The basic paragraphs, I will give you the numbers first

6 so everything is clearer for the record, to make objections.

7 On paragraph 21, which addresses the obstruction, the

8 offense level first in number 24, the added adjustment on

9 the obstruction is 28. The total level comes down to

10 paragraph number 33.

11 Factually, the only factual dispute we have is the

12 paragraph regarding his former wife and statements that she

13 made at the bail hearing which were objected to then and are

14 objected now regarding threats.

15 Dealing directly with the legal issues that we have

16 regarding the offense level which the probation officer puts

17 at level 33, which is 121 to 151 months under the

18 guidelines, for a violation of 18 USC, 1958, which is the

19 only count in this case.

20 That statute provides in a noninjury case, which is this

21 case, that the penalty shall be a fine or a period of

22 incarceration from zero to a maximum of 10, with no

23 minimums, either or both.

24 Now, when Congress passed 28 USC 994, which was part and

25 parcel of the statutory creation of the Sentencing

 

Page 7

1 Commission - and 994 is the expression of their authority

2 and duties, so to speak, and sentencing range, et cetera -

3 they said in section A that the commission was to do their

4 work consistent with all pertinent portions of Title 18.

5 And in section B, they said that the ranges, and they

6 required them to do ranges, not to recalculate and reenact

7 sentences on behalf of Congress, but to do ranges that are

8 consistent with all pertinent provisions of Title 18, and

9 that if there was going to be a term of imprisonment in a

10 guideline that they were going to promulgate, that the

11 maximum range could not exceed the minimum by more than six

12 months or 25 percent.

13 Over in section G, they make reference specifically to

14 3553, which is the imposition of section - in Title 18, the

15 sentencing section of the code. And in subsection H, they

16 talk about the situations in which the commission is allowed

17 to put a guideline range at or near the maximum sentence.

18 They say that they may, if they feel appropriate, put a

19 sentence at or near the maximum range if certain conditions

20 are met. And they are given very tight rein, which is why

21 the statute is considered constitutional in the first place.

22 And the criteria that have to be met before they can put

23 a sentence at that range as a guideline are as follows:

24 Under (h), it has to be a felony, a crime of violence or a

25 drug offense, and - and this is conjunctive - the second set

 

Page 8

1 of criteria, without which they may not do that, are that

2 the defendant has to have previously been convicted of two

3 or more prior felonies which were also either related to

4 violence or drugs.

5 Now, the Sentencing Commission elsewhere was put into

6 the judicial range. That led from the Lastrada(?) case. In

7 the Lastrada(?) case the Supreme Court was asked to look at

8 whether or not it was an unlawful, that is an

9 unconstitutional, delegation of the legislative function to

10 a judicial entity. And in Lastrada(?), the Court was very

11 careful to do an amazing analysis of the guidelines and the

12 enabling delegation and the history of delegation of

13 authority. And they said in there that - and this is at

14 page 372 - that Congress generally cannot delegate it's

15 legislative powers to another, citing Field versus Clark, a

16 1892 case at 143 US 649. And so long as Congress shall lay

17 down by legislative act the principles and designate

18 authority where the person so designated is directed to

19 conform with the Congressional dictates, then they may

20 designate authority and Congress has to clearly delineate

21 the boundaries of the delegated authority. And that's in

22 Lastrada(?) at pages - excuse me, these internal pages, I

23 sometimes miss my pagination. At page 373, Your Honor.

24 Now, at pages 374 and 75 of that opinion, it says:

25 Congress instructed the commission - and this is the reason

 

Page 9

1 why it was held constitutional - that these sentencing

2 ranges must be consistent with pertinent provisions of Title

3 18 and do not include sentences in excess of a statutory

4 maximum.

5 It's nice to see that they use Latin there.

6 Now, the sentence here is in section 2E1.4 of the

7 guidelines, and it exceeds the statutory maximum. And the

8 pertinent part of Title 18 for this case is 1958, where it's

9 10. The other pertinent parts are subsection (h) of 994 in

10 Title 28, because it has to conform with both that section

11 and Title 18.

12 We do not have an individual before the Court with a

13 prior conviction of felonies involving either drugs or

14 violence, let alone two. So therefore, there is no basis to

15 set a guideline range at or near the max, which they are

16 authorized to do in (h)(1), but they have to meet the

17 criteria of (h)(2), which they do not.

18 Now, in the Sixth Circuit, in the Thomas case decided in

19 March '95, they talk about the constitutionality of the

20 guidelines, among other things, and adopted Lastrada(?). So

21 there is no aberrant countervailing opinion in this circuit.

22 And that's a '95 case.

23 Another '95 case is cited is in Re Bankers Trust

24 Company. There was a writ of mandamus. It had to do with

25 delegation of regulatory authority to the Federal Reserve.

 

Page 10

1 And in that decision, they found that the particular

2 regulation, which isn't necessarily important to us, was

3 something that was contrary to another law and they couldn't

4 have delegated the authority to promulgate a regulation that

5 was in contravention of the law. Therefore that delegation

6 was excized out. And in this case they talk about standard

7 language, which is through Lastrada(?) also. If you have an

8 unconstitutional portion of the law, you don't throw the

9 whole statute out, you take the unconstitutional portion or

10 the offending portion and take it, strike it out and put it

11 on the side.

12 And in this case which is before you today, that is what

13 it's clear you would be required to do, because the

14 guideline excees the maximums, and there is no authority for

15 it. The guideline criteria in 994 and the criteria in 3553

16 of Title 18 talk about the idea that you have two things:

17 You have an offense with variables, and you have an offender

18 with variables. The offense with variables in a case like

19 this might be whether or not it was an intended official

20 victim or an especially vulnerable victim as defined. We

21 don't have those here, but those are the kinds of offense

22 characteristics that could apply. Or multiple intended

23 victims are the kinds of things that could go to the

24 offense, even when there is no injury, but they still would

25 fit under 1958 and be applicable under various portions of

 

Page 11

1 the guidelines.

2 The other offender specific characteristics would go to

3 criminal history.

4 So in this case, for example, if the defendant before

5 the Court were on state parole for first degree murder, had

6 two prior convictions for assault with intent to kill within

7 five years of the state case that put him on parole, all of

8 that within the last eight years, had intended multiple

9 victims, all of whom were vulnerable, they would receive no

10 different sentence than a man of a cloth who in despair and

11 grief went to hire someone to slay somebody who had killed a

12 whole bunch of people in his community and had had an

13 unblemished record. They would be in the same position:

14 10, that's it, no place to go.

15 So the commission in this particular guideline did not

16 comply with their mandates from Congress to have offense

17 specific variables available, because there is nowhere to

18 go; or offender specific variables available, because there

19 is no way to go, regardless, in the example I'm selecting,

20 of criminal history.

21 It would appear that the guideline as a whole survive.

22 This one does not, under Lastrada(?) and under the cases

23 cited in there. Which leaves us then, in our view, to a

24 sentence under 18 USC, 3553 and the factors that they set

25 forth there which talk about what happens when there is no

 

Page 12

1 applicable guideline.

2 Your Honor, I don't know - that issue as a whole, the

3 integrated issue, if we prevail on it, we never address

4 obstruction, because it wouldn't apply. And I don't know

5 how you wish me to proceed on the issue of obstruction.

6 THE COURT: I think you should argue it factually

7 or perhaps alternatively, but I think you need to address it

8 on its merits.

9 MR. MILLER: All right, Your Honor.

10 THE COURT: In the context, of course, of the

11 defendant's testimony.

12 MR. MILLER: Yes, ma'am. There are two bases

13 offered by the probation for the obstruction. And this is

14 aside from the fact that there is no range. If the Court

15 finds that there is a range -- And the basis for it is

16 pretty much in paragraph 21 where they state that Mr. Hayes

17 claimed that he did not contact Mr. Myers and did not hire

18 the FBI undercover for the purposes of a murder for hire,

19 and that that conflicts with the tapes.

20 I have read the portions of the record and am not aware

21 of - and have read Mr. Myers' testimony, and I am not aware

22 of any evidence of any tapes regarding Mr. Myers'

23 conversations with Mr. Hayes. I did not try the case. If

24 I'm in error, I apologize. I have read Mr. Hayes'

25 testimony, and in reading Mr. Hayes' testimony, I have not

 

Page 13

1 seen him contradict the statements contained in the tape

2 recordings.

3 And it would seem that if the United States intends to

4 rely on an obstruction enhancement, then they have the

5 burden to go forward in this and establish it. And I don't

6 see the tapes, the conversations with Mr. Myers or

7 Mr. Hayes's testimony conflicting with saying I didn't say

8 that or it's a ginned tape or it's one of these electronic

9 kind of marvel thing that people do with tapes these days,

10 that somebody played these kinds of games like that with it.

11 I didn't see that in his testimony anywhere, what I have

12 read of it. I believe that I may have had all of his trial

13 testimony.

14 I also don't know, from talking with Mr. Galbraith, that

15 there were any tapes of Mr. Myers in the case. If there

16 are, then I need to be corrected on that misapprehension on

17 my part. But I don't know that there were any introduced

18 into trial and don't know that there is any testimony that

19 he contradicted the contents of the tapes that were

20 presented.

21 THE COURT: All right. Thank you.

22 On behalf of the government, who is going to argue in

23 response to these objections? Mr. Hatfield?

24 MR. HATFIELD: Yes, Your Honor. Your Honor, if it

25 please, with regard to the instruction, we believe that the

 

Page 14

1 probation office was correct in their assessment.

2 Mr. Hayes was asked on at least two occasions, that I

3 can recall, by myself whether or not he ever had any

4 conversations with Lawrence Myers concerning having his son

5 murdered. Both of those questions he asked answered in the

6 negative. And the Court at some point in time during the

7 trial, I don't know if it was on motion for directed verdict

8 or motion for judgment of acquittal or not, but the Court

9 picked up on the fact that if Mr. Hayes had ever had a

10 conversation concerning that with Mr. Myers, then how did -

11 when Don, the undercover agent, first contacted Mr. Hayes,

12 how did Mr. Hayes know to immediately start discussing

13 Personal information about his son with Don and agree to

14 send Don a picture of him and driver's license numbers and

15 that sort of thing, when he had never talked to or met Don

16 before.

17 So that, Your Honor, was absolutely contrary and was

18 perjurous testimony.

19 Also, Mr. Hayes' defense throughout this whole thing is

20 that he knew that this was all a setup and that he was

21 merely playing with the government or trying to set the

22 government up or catch the FBI. I think Mr. Galbraith used

23 the words, kicking the government's shins and tweaking their

24 noses.

25 Along those lines, and to - what I felt like to attempt

 

Page 15

1 to compel the jury to believe that he knew - that he had

2 reasons and ways to know who Don actually was, the

3 undercover agent, he got up on the witness stand and he

4 testified at length about his days with the CIA; how long he

5 had been employed by the CIA; what he and these other

6 members of some sort of an elite group that owned a computer

7 had done; how they had caused numerous members of Congress

8 and senators to either resign from office or not run for

9 re-election; how he knew something about - about the Vincent

10 Foster murder or homicide or suicide or whatever it was, and

11 that that - that the - that Mr. Foster's death was directly

12 related to Mr. Hayes and his group of ex-CIA agents

13 releaving Mr. Foster of a large sum of money in a Swiss bank

14 account.

15 We then presented evidence that - that Mr. Hayes had

16 never been affiliated with the CIA. And that wasn't good

17 enough for Mr. Hayes. He then retook the stand again, and

18 said that if the government had looked in the right place,

19 that - or had asked the right questions, then we would have

20 found that he did work for the CIA. And Mr. Hayes from the

21 witness stand gave the Court and the jury information

22 concerning what his CIA name was and what his number with

23 the CIA was.

24 Along those lines, we contacted the CIA again, and we've

25 procured a letter from them that I would like to enter into

 

Page 16

1 the record as government exhibit S 1 today, stating that

2 they searched the records under Charles S. Lawson, which is

3 what Mr. Hayes testified to, and Mr. Hayes' control number

4 that he gave from the witness stand, 602367, under oath.

5 And they again said that they found that this individual had

6 no relationship with the CIA, either employment, contractual

7 or operational.

8 So there again, this was the crux of Mr. Hayes' defense,

9 I thought, in that he could convince the jury that he was

10 this super top secret agent that had caused numerous high

11 level officials within the government to step down from

12 their positions, so therefore leaving the impression with

13 the jury that if I can do that, I know - I should have known

14 that this little FBI agent from somewhere in Alabama was an

15 FBI agent.

16 And so I would like to introduce this --

17 MR. MILLER: I haven't seen that, Your Honor. I

18 don't think it's permissible. If we're going to put in an

19 exhibit under Rule 16, which --

20 THE COURT: Show it to me.

21 MR. MILLER: - which I haven't --

22 THE COURT: Show it to him. I can hear hearsay.

23 (A document was shown to counsel)

24 MR. MILLER: I will address that at the

25 appropriate time, Your Honor.

 

Page 17

1 THE COURT: All right.

2 MR. MILLER: When it's our turn for...

3 (The document was shown to the Court.)

4 MR. HATFIELD: Finally, Your Honor -- I am sorry.

5 (A pause was had in the proceedings)

6 THE COURT: That's all right. Go ahead.

7 MR. HATFIELD: Finally, Your Honor, under the

8 instruction under 3C1.1, one of the nonexhaustive examples,

9 that is a nonexhaustive limit in one of the examples, when

10 someone subornes or attempts to suborne perjury. And I

11 don't think the false matter that someone testifies about, I

12 don't think there is any question that it has to be material

13 to the charge. And I would submit to the Court, Your Honor,

14 that the testimony that I have just outlined regarding

15 Mr. Hayes, as well as specifically the fact that he denied

16 ever discussing this with Lawrence Myers, I think the

17 probation office is correct in their assessment of the

18 situation in giving Mr. Hayes two points for obstruction of

19 justice.

20 THE COURT: All right. Thank you.

21 Now, the other objection --

22 MR. MILLER: Your Honor, I'm sorry.

23 THE COURT: Wait just a minute, Mr. Miller, I'll

24 come back to you.

25 The other objection was the statutory maximum versus the

 

Page 18

1 guideline range being on top of that. I need you to address

2 that as well.

3 MR. HATFIELD: All right, Your Honor. Of course,

4 that, I would first refer the Court to section 5G1.1, which

5 is sentencing on a single count of conviction. It's 5G1.1.

6 That specifically addresses where there is a statutorily

7 authorized maximum sentence that is less than the minimum of

8 the applicable guideline range.

9 And that addresses the situation we've got here. You've

10 got a statutory authorized maximum sentence of 10 years.

11 And that is less than the minimum of the applicable

12 guideline range, which is 121 months, I believe, without

13 looking back at the presentence report. No, I'm sorry, 151.

14 THE COURT: One fifty-one to --

15 MR. HATFIELD: It says the statutorily authorized

16 maximum shall be the guideline sentence. So - and then it

17 goes on down in the commentary -- And this guideline has

18 been in effect since 1987, and there is no other commentary

19 to it except the little paragraph that's listed. And the

20 second sentence of that paragraph specifically deals with

21 our situation here.

22 It says: For example, if the applicable guideline range

23 is 51 to 63 months and the maximum sentence authorized by

24 statute for the offense of conviction is 48 months, the

25 sentence required by the guidelines under section A is 48

 

Page 19

1 months.

2 Subsection A is what we're dealing with. A sentence

3 less than 48 months would be a departure.

4 And I think what this - what this section of the

5 guidelines is saying, is that we are adopting this - whether

6 you want to call it the statutory sentence or the guideline

7 sentence - we're adopting, anywhere there is a statutory

8 sentence in the guidelines that's less - I am sorry,

9 anywhere there is a statutory sentence that's less than the

10 guideline sentence, we are hereby adopting the statutory

11 sentence as the guideline sentence. And that gives the

12 Court direction on - on where an individual should be

13 sentenced.

14 And I would also point out in this particular case, that

15 even though the offense level is a 32 under the applicable

16 guidelines, there are other adjustments that can go into

17 that, downward adjustments that would make it fall within

18 the - or below the 10-year range. Those are adjustments

19 that Mr. Hayes obviously didn't get, but such things as - as

20 acceptance of responsibility, which can be anywhere from one

21 to three points, and there could also be some sort of

22 adjustment for role in the offense which would bring it down

23 even further. And if you took those into account, and a

24 person with a criminal history score of 1, that would bring

25 it down below the 10-year maximum as prescribed by the

 

Page 20

1 statute.

2 Also, this guideline has the alternative where you can

3 use either the 32 or the level that would be applicable to

4 the underlying offense conduct. And in this particular

5 case, the 32 happens to be one that we used, because I think

6 it says use the highest of the two.

7 But I think, clearly, the commission has said here, if -

8 if the guidelines are higher, then we're adopting the

9 statutory maximum as our guideline sentence. And I think

10 that addresses the issue, unless the Court had any

11 questions.

12 THE COURT: No, I just wanted to be sure you

13 addressed it.

14 MR. HATFIELD: Yes, sir.

15 THE COURT: Thank you, Mr. Hatfield.

16 THE COURT: All right. Any reply to either of

17 those arguments, Mr. Miller?.

18 MR. MILLER: Yes, Your Honor. Very briefly on the

19 guideline applicability. That section in section 5 of the

20 guidelines is for those cases that fit within subsection (h)

21 of 994 and had to be there for that reason, where they could

22 put at or near the maximum if it fits a certain criteria,

23 which is not this case. So that argument does not address

24 this case, because this case --

25 THE COURT: Do you have a case that says that? Or

 

Page 21

1 can you point to something in the guidelines?

2 MR. MILLER: I can point to 994 which says when

3 you can put at or near. And the only time you can do it is

4 under those criteria and it's nowhere else. And I could

5 point to Lastrada, which I presented to the Court earlier.

6 THE COURT: But Lastrada(?) doesn't expressly

7 address 5G1.1(a).

8 MR. MILLER: No case I ever found said that -

9 looked at 2E1.4, looked at a violation like this of 18 USC,

10 1958. I don't know of - if it's because of the rarity of

11 the type of prosecution not in conjunction with other things

12 or not, but I know that in the guidelines other than

13 subsection (a)(8), there is another provision that deals

14 with multiple offenses, which is not this, or multiple

15 counts or multiple indictments or a group, if you have cases

16 in a couple jurisdictions or something.

17 That doesn't apply here. So I can't see that it's been

18 raised and I'm not going to tell you that it has been raised

19 or decided. All I can say is that in looking at what they

20 did in Lastrada and the cases that they dealt with it, the

21 Sixth Circuit said it's fine, good, went on. Other circuits

22 which looked at it in greater detail talk about, and as they

23 did in the banking regulation case, delegation, of what the

24 delegatee can and can't do.

25 And I can't see any way that this can fit within the

 

Page 22

1 law, even though I can't say a case has already said that.

2 Now, they have the burden, and they put in an exhibit,

3 and I have a few that I would like to tender to you that

4 address this issue. And I have copies also for the

5 government.

6 THE COURT: All right.

7 MR. MILLER: And let me give the government this,

8 which is number 1, which is a - an evaluation of Mr. Myers

9 and a discharge date. And I will explain how they are

10 relevant after I present them, if I can do that, and make

11 that easier, identify them first, Your Honor.

12 THE COURT: This is in regard to the obstruction

13 of justice --

14 MR. MILLER: Yes.

15 THE COURT: - enhancement?

16 MR. MILLER: Yes.

17 (A discussion was had off the record)

18 MR. MILLER: I have item number 2, Your Honor, is

19 a series of records from California regarding Mr. Myers

20 which I gave the government earlier, but I haven't put it in

21 the record. All of this is for the obstruction issue.

22 MR. HATFIELD: Your Honor, we would reserve the

23 right to object to this after we see what Mr. Miller has to

24 say.

25 THE COURT: All right.

 

Page 23

1 MR. MILLER: 3 is an NCIC report, which I - I'll

2 address how all this relates, Your Honor, after I get it -

3 the housekeeping out of the way. And 4 and 5 are - 4 is an

4 affidavit from an investigator that I had search the records

5 at the University of Maryland, and 5 is a certification from

6 the registrar's office, verification of academic

7 information. And the record will reflect that I am handing

8 this to the United States.

9 MR. HATFIELD: This is 5.

10 MR. MILLER: That's 5 and the affidavit is 4,

11 regarding Mr. Myers and the University of Maryland.

12 And now, if I could have them all identified, if I could

13 move them in and then tell you why I think they help us in

14 our argument on obstruction.

15 THE COURT: All right.

16 MR. MILLER: Thank you, Your Honor. In the first

17 instance, the military and school records establish -

18 military records establish his discharge date. His trial

19 testimony was that he served in - for four years, even

20 though you already recognize it was less than three. The

21 trial testimony also had a portion listed by the prosecution

22 on direct examination for Mr. Myers regarding attendance at

23 the University of Maryland.

24 The last two exhibits, the raised seal copy, which you

25 have, from the University of Maryland and the affidavit from

 

Page 24

1 the investigator that had the records search there shows

2 that he never attended.

3 The records regarding the criminal history and the

4 California records contain in there records reflecting that

5 he was in Highland Hospital psychiatric wing. He was

6 committed for lack of competence in the November, when he

7 was charged with extortion by threats. And then the

8 following March was restored to competency. And in the

9 middle he was in a psychiatric hospital in California, until

10 the judge said he was restored to competency, and that he

11 failed to appear for sentencing on his plea agreement and is

12 a fugitive in violation of 18 USC 1073, which is the

13 fugitive statute, which is an ongoing offense until you are

14 apprehended, and is a federal violation.

15 MR. HATFIELD: Your Honor, object. Mr. Miller, I

16 think I understand what he's trying to do, trying to get

17 into the record things that the Court --

18 THE COURT: Overruled. But I want you, before you

19 go further, relate this for me --

20 MR. MILLER: Yes.

21 THE COURT: -- to Mr. Hayes' truthfulness --

22 MR. MILLER: Yes.

23 THE COURT: - and not Mr. Meyers' truthfulness.

24 MR. MILLER: Yes. The way it relates to

25 Mr. Hayes' obstruction is, and so we're looking at - at his

 

Page 25

1 obstruction at trial and seeing whether or not the evidence

2 taken as a whole, including other evidence that's

3 presented --

4 THE COURT: Whose obstruction?

5 MR. MILLER: Mr. Hayes has an obstruction

6 possibility here, and we're looking at it post-trial to

7 determine whether or not the record as a whole justifies an

8 enhancement, assuming the guidelines apply, which I don't

9 concede. But that if they do, so that in that context you

10 have to look at the information offered to you to support

11 the claim that he obstructed.

12 One of the legs on which the government rested in their

13 argument was the credibility of Mr. Myers. That's what I

14 just - that's not the only thing they did, but that's the

15 first part I'm addressing. The second part is their letter,

16 I will address next in order.

17 They talk about Mr. Myers. The probation officer's

18 report also talks about the testimony of Mr. Myers. And I'm

19 addressing just that portion of it. I will deal with the

20 second part in a minute.

21 THE COURT: I understand.

22 MR. MILLER: And these exhibits deal with that

23 portion of it. To the extent that these exhibits deal with

24 that portion of it, what they are doing is showing this

25 Court that because Mr. Myers was given basically total

 

Page 26

1 immunity on a ULFAP violation - excuse me, unlawful flight

2 to avoid prosecution.

3 MR. HATFIELD: I object. That's not what happened

4 and I don't want the record to be conjested with that.

5 Nobody ever gave Mr. Myers immunity. And I apologize for

6 interrupting Mr. Miller.

7 THE COURT: That objection is sustained. There is

8 no immunity given as far as I know in this case.

9 Now, Mr. Miller, let's get to the point. Let's get to

10 the point. The point here - and frankly, I think this is

11 all a false issue. I think the entire Lawrence Myers issue

12 is a false issue. What - what the government said, more

13 precisely, is not reliance upon the entire credibility of

14 Myers, Lawrence Myers. What he said is, paraphrasing, that

15 the defendant lied when he said he did not have

16 conversation - a conversation with Myers about having his

17 son killed.

18 Now, if you can respond to that, let's just get to the

19 point.

20 MR. MILLER: That whole point is dependent upon

21 Myers' credibility, because there is no other basis upon

22 which that statement can rest other than Myers' credibility.

23 I don't know of any other basis for that statement to be

24 utilized unless Myers is credible.

25 THE COURT: All right. And then --

 

Page 27

1 MR. MILLER: Now, Myers is not credible because,

2 A, it is clear from the exhibits we presented that he

3 committed perjury. He lied about the military and

4 schooling. His criminal record is also clear that he had

5 three psychiatric episodes, which those records reflect.

6 And because of those three episodes, and I'm not going to

7 argue that because that issue has been decided by the Court,

8 but that's a reflection on lack of credibility for him in a

9 standard where this issue must be decided by clear and

10 convincing evidence, according to that Second Circuit case

11 we cited earlier in our memo. Then - I think it's 100 F.3d,

12 I forget the page number, I apologize, I think it was

13 decided in November of '96. Ruggiero. Let me give you the

14 name, Your Honor. I better spell it because I can't

15 pronounce it real well. It's spelled R-U-G-G-I-E-R-O. And

16 it was November of '96, 100 F.3d, 284.

17 Under that standard, with this evidence about his

18 credibility now at this juncture, it can't be met and so

19 therefore that prong of their basis to try and tag Mr. Hayes

20 with obstruction fails.

21 Dealing now with Mr. Hayes - and I would say that I'm

22 not contending that there was an immunity agreement in

23 writing with Mr. Myers that he wouldn't be prosecuted for 18

24 USC, I think it's 1073, which is the obstruction, but

25 absconding and unlawful flight. I don't contend that there

 

Page 28

1 was a written agreement. And if that was understood, I

2 didn't mean to say that. What I meant to say is - and it is

3 1073, flight, felony - that there was a de facto benefit to

4 him in his fugitive status. Whether it was express or

5 implied I don't think makes a difference. And it was a

6 basis for a determination of lack of credibility and bias on

7 his part that this Court can take into account in weighing

8 that in this prong of the obstruction. That's our argument

9 on that part.

10 ' Turning now to the other part on which the government

11 relies, which is the CIA letter. We'll renew our objection

12 on that, for discovery purposes it should have been

13 produced. The second thing thing is, it is clear that it

14 did not search all of the appropriate records, and says so.

15 I want to recount, if I might, very briefly a case with

16 the CIA, to give you an example to understand my argument.

17 And in this case there were secret cables and confidential

18 cables that had been released by someone in contravention of

19 the classification laws dealing with the State Department

20 and intelligence matters, the Department of Justice. And

21 the case was U.S. versus Troung. In U.S. versus Troung the

22 Department of Justice asked the Central Intelligence Agency

23 to analyze the traffic that had been compromised and give

24 them a report. The report came back and said that it would

25 take the attenuated logic of a Jesuit to say that these

 

Page 29

1 reports created any harm to the national interest.

2 The Department of Justice then sent a memo back to the

3 Central Intelligence Agency with a directive: We can not

4 possibly prosecute this case with that analysis, do it

5 again. Someone else did it.

6 In that analysis, looking at it, to the original

7 analysis, document by document, the language was very

8 clever, and it was - and the scrivener was very, very

9 schooled in English, and said in both documents the same

10 thing, but in the document on which they relied on the

11 Troung case, and then they didn't rely on the document, they

12 put a witness on stand.

13 I tried the case. That's how I am familiar with the

14 documents and how close they were. But this is how

15 different they appeared. This document says, reasonable,

16 according to whom with no standard or criteria. It's like

17 litigation regarding reasonable efforts to segregate

18 juveniles in various states has been found to leave the

19 state not responsible for failing to segregate juveniles

20 from adults because reasonable efforts had no criteria and

21 no force of law. And they said, well, we'll look at it.

22 They couldn't really do it. Then in civil rights litigation

23 they have not been held liable in those states where that

24 has been a problem.

25 So in the letter you will notice, though I don't have a

 

Page 30

1 copy, that they talk about reasonable efforts were made to

2 search some records. But it was not an all records search.

3 And I will proffer to you a witness's testimony on that

4 issue. His name is Ted Gunderson, G-U-N-D-E-R-S-O-N,. He

5 served as a member of the Federal Bureau of Investigation

6 from 1951 to 1979. In 1979 he retired as a Senior Special

7 Agent in charge of the FBI Los Angeles division. He was in

8 the field from 1951 to 1960. Had assignments in field

9 offices in Alabama, Tennessee, New York and New Mexico.

10 Nine years experience in the field in internal security and

11 coungterespionage for the FBI. Supervisor at FBI

12 headquarters in Washington, D.C., 1960 to '65. Special

13 Agent Supervisor at FBI headquarters, Washington, D.C.

14 Supervised organized crime, security, government employees

15 and special inquiry White House matters on three

16 assignments. 1965 to '70, Assistant Special Agent in

17 charge, New Haven Connecticut, counterespionage matters

18 involved during that assignment as his duties. From '70 to

19 '73, Assistant Special Agent in charge of the Philadelphia

20 division. '73, Washington, D.C. as an inspector. '73 to

21 '77, Special Agent in charge of the Memphis and Dallas

22 divisions. '70 to '78, Senior Special Agent in charge of

23 the Los Angeles division, three Special Agents in charge -

24 offices under his command, 16 resident agent under his

25 command, 700 persons were working for him. He had a budget

 

Page 31

1 of 22.5 million dollars and 14,000,000 people within his

2 jurisdictional area.

3 Now, during the past years in his consulting business,

4 in the last 17 years he's maintained contact with people in

5 the intelligence community, both on a professional and

6 friendship basis, because he worked with them for so much of

7 his life.

8 Now, he has had experience in finding out whether

9 individuals, for a variety of reasons, were or were not

10 affiliated with various parts of the United States

11 intelligence agencies and community and so on. And in his

12 experience, one would need to do an all-records search in

13 order to get an accurate answer as to whether an individual

14 was or was not affiliated with or associated with the

15 intelligence community, in this particular case the CIA.

16 That is not an all records search. It doesn't pretend

17 to be. It is careful in its wording. And I give credit to

18 the author.

19 THE COURT: I understand your point on that.

20 MR. MILLER: All right.

21 THE COURT: I understand your point on the letter.

22 MR. MILLER: All right. Now, if you take these

23 two pieces, and the two prongs of this one approach, it

24 cannot be said to the standard of clear and convincing

25 evidence that the testimony at issue, as recounted in the

 

Page 32

1 paragraph at issue of the presentence report, which is

2 paragraph 21, is such that it rises to the level of

3 obstruction. And I don't think the Court can make the

4 required particularized findings necessary to make such a

5 determination under the evidence presented here on this

6 issue.

7 THE COURT: All right. Thank you. I do

8 understand your arguments on - on both of these points. Let

9 me see here. Before I hear anything further, I do want to

10 go over the calculations that are set out in the presentence

11 investigation report.

12 If you wish to follow along, this is at page 9 of the

13 report.

14 The base offense level is drawn from section 2E1.4 of

15 the guidelines and is set at a base offense level of 32. In

16 the report there are two levels added for obstruction of

17 justice, making a total offense level of 34.

18 I have heard your objection to the obstruction of

19 justice enhancement, Mr. Miller. And your objection with

20 regard to the range of sentencing here, essentially that

21 there is no range which applies. Other than those

22 objections, do you object to the calculation at page 9 of

23 the presentence report?

24 MR. MILLER: Other than those objections, we have

25 no further objections to the calculations, Your Honor.

 

Page 33

1 THE COURT: All right. And then on page 10 we

2 show a criminal history score of zero, making a criminal

3 history category of one be appropriate in this situation.

4 Any objection to that, Mr. Miller?.

5 MR. MILLER: No, Your Honor, I think that's

6 correct.

7 THE COURT: Mr. Hatfield, any objection to either

8 of those calculations?

9 MR. HATFIELD: No, Your Honor.

10 THE COURT: Mr. Miller, I will ask you and your

11 client to come forward in front of the clerk, please.

12 While they are coming, I do want to say, Mr. Hatfield,

13 that a copy of this letter from the CIA needs to be given to

14 the defense counsel. And I will direct that that government

15 exhibit S 1 be placed in the record with regard to this

16 sentencing hearing and that defendant's exhibits marked 1

17 through 5, I think, be placed in the record. And I believe

18 you have copies of those.

19 MR. HATFIELD: Yes, and that's what I was going to

20 say, Your Honor. Those are nothing new, with the exception

21 of numbers 4 and 5. All of those were documents that we had

22 actually provided - well, 1 and 3 I think we provided to

23 defense counsel.

24 THE COURT: I understand you objected but I

25 overruled that objection.

 

Page 34

1 MR. HATFIELD: All right.

2 MR. MILLER: Your Honor, we had requested a

3 downward departure, as you know, based on the health age

4 issue.

5 THE COURT: You probably need to address that now

6 as a part of this exchange.

7 I, Mr. Hayes, you should know that it is at this point

8 in a sentencing that I ask your attorney if there is

9 anything else that needs to be said with regard to

10 sentencing. And I know there is a motion for a downward

11 departure. After he speaks on your behalf, I will turn to

12 you to see whether there is anything you wish to say.

13 Mr. Miller, you may go ahead and address your motion for

14 downward departure and anything else you wish to say with

15 regard to sentencing.

16 MR. MILLER: All right. 5H1.1 and 4 are where

17 this kicks in. If you look at the report, that's 1, 1.

18 You'll see that he's on 10 medications. He's got a

19 blood pressue problems. Collapsed lung problems.

20 Tubercular diagnosis. Embolisms that maybe a month or two

21 ago the marshals were very concerned that he might have to

22 be under constant hospital monitoring. They are temporarily

23 under medical control. However, where he's currently

24 housed, the local authorities are not getting him his

25 medication at all on a regular basis as required by the

 

Page 35

1 doctors and don't appear to have either the impetus or the

2 ability to get them to him when he needs them.

3 He has intestinal problems in addition to that, as well

4 as blood pressure, which can sometimes manifest itself into

5 more serious problems, depending on the individual. And at

6 his age and general overall health with the other

7 conditions, that's more of a problem than it would be for

8 someone who didn't have the entire gamut of things.

9 In Kuhn, the Supreme Court talked about adjustments on

10 things that were permissible and courts relying on concerns

11 In life and knowledge about things to look at these issues.

12 And in 3553 you talk - you see talk from Congress about

13 judges, when looking at all of these things - and these are

14 permissible areas - you see judges looking at things and

15 seeing that courts need to look at jail as not being a magic

16 panacea to solve all ills.

17 Our cite in that regard is interesting. I apologize to

18 the Chinese. They have 103 people for every 100,000. Per

19 thousand incarcerated, we and the Russians are at the top.

20 They have 690, we have 600. The next civilized nation down

21 is about 300. We have the worst crime rate. All of the

22 studies in reduction of crime rate that I can find from any

23 source, government or otherwise, all agree that the massive

24 incarceration is having zero impact on the crime rate. It

25 is having a great deal of impact on the profitability of

 

Page 36

1 prisons and privatization.

2 And the one area where they have really have been able

3 to do a study on crime reduction, which is New York City,

4 they found that the incarceration rates were going down

5 while the crime rate was going down, and that it was the

6 policing changes rather than the jailing of people changes

7 that reduced crime in that area which was studied.

8 THE COURT: Mr. Miller, philosophically you may

9 have some good points to make. However, if this is a motion

10 to depart based upon the age and physical condition of your

11 client, I suggest you bring yourself back to that point and

12 let's argue that, rather than the value of incarceration as

13 an end to crime.

14 MR. MILLER: Well, they are interrelated to the

15 extent that under Kuhn, when a court is looking at that

16 application of a departure such as 5(h)(1), 1, and 4, you

17 can look at the experience and rationality of what's before

18 you in making that decision. And in this particular case,

19 it would not be of any detriment or harm to anyone to

20 refrain from giving a departure. And I think a departure -

21 you should not refrain from giving a departure and should

22 give a departure in this case because of his health.

23 A 10-year sentence on a 63-year-old, which is what the

24 government is saying here, puts him in his 70's. And there

25 is no relief likely in that context. And you have to look

 

Page 37

1 at the age, which is one, and age and health, which is 4

2 under 5 (h)(1). And in combination to the sentence, you

3 don't do it in a vacuum with myopia, you do it looking at

4 the whole panoply of things. And that's what I'm asking you

5 to do. It would be appropriate for a downward departure in

6 this case.

7 THE COURT: All right. All right. And is there

8 anything else you wish to say with regard to sentence?

9 MR. MILLER: No.

10 THE COURT: All right. Mr. Hayes, you may speak

11 on your own behalf before sentence is imposed, if you wish.

12 Do you have anything you wish to add?

13 DEFENDANT HAYES: No, ma'am, I don't.

14 THE COURT: All right. Mr. Dean, do you have

15 anything you want to say on behalf of the defendant?

16 MR. DEAN: I don't have anything to add, Your

17 Honor.

18 THE COURT: Mr. Hatfield or Mr. Molloy, on behalf

19 of the United States?

20 MR. HATFIELD: Your Honor, do you wish me to

21 respond to the departure issue?

22 THE COURT: No.

23 MR. HATFIELD: Okay.

24 THE COURT: I'm - I have had, I have heard what

25 they have to say, and you don't have to respond to that

 

Page 38

1 because I am going to deny that motion for downward

2 departure.

3 MR. HATFIELD: Okay. One thing I would ask is

4 that the Court make clear for the record that you recognize

5 that you do have the discretion to depart and then put on

6 the record whatever reasons it is that you are - will not

7 depart.

8 With regard specifically to the sentence, this has been

9 an interesting case, and there is a lot that came out during

10 the case, especially with regard to Mr. Hayes. And I

11 touched on it earlier with regard to his testimony about

12 prior government experience and CIA membership and so forth

13 and so on, causing Vincent Foster to take his own life and

14 Congressmen and Congresswomen and U.S. Senators to resign

15 from office.

16 I, quite frankly, feel that there is not a whole lot

17 that Mr. Hayes said on the witness stand that was true

18 throughout his entire testimony. I think he attempted to

19 make a mockery out of the justice system in this particular

20 case. And he's tried to blame everyone but himself for what

21 took place here.

22 And what actually took place here and what it boiled

23 down to was Charles Hayes, this defendant, being selfish and

24 greedy and conniving, in an attempt to gain wealth. That's

25 basically what this case boiled down to. And Mr. Hayes has

 

Page 39

1 never taken responsibility for that. He's not been honest

2 with this Court. He wasn't honest in front of the jury.

3 And when you go back and look at the case, he can - they can

4 say that Lawrence Myers lied, they can say that David Keller

5 lied or did something to - to conjure up a false NCIC

6 report, they can blame everybody else, but when you go back

7 and look at the case and what it really boils down to, it's

8 a cold hearted Charles Hayes, on tape, his own words,

9 unsolicited, trying to hire another individual to kill his

10 son, all out of greed for money.

11 And based on that, I would ask the Court to sentence

12 Mr. Hayes to the maximum, which is 10 years.

13 THE COURT: All right. Thank you.

14 MR. MILLER: Your Honor, may I briefly respond?

15 It will be very short. I can be short.

16 THE COURT: All right.

17 MR. MILLER: All right.

18 THE COURT: I don't normally allow a response, but

19 I want to be sure you are heard, Mr. Miller. Say whatever

20 you want to say.

21 MR. MILLER: Thank you, Your Honor. Very briefly,

22 the real nub of the case is what was his intent. The reason

23 he said what he said on the tapes. And the evidence that we

24 had prehaps wanted to have produced would have addressed

25 that specific issue in the post-trial motions. And I don't

 

Page 40

1 think the Court - you have ruled on that. We can't - we're

2 not - I'm not going to argue with you on that. But I think

3 the Court ought to look at the picture of things and

4 determine that less than the maximum would be appropriate.

5 THE COURT: All right. Thank you.

6 Now, let me just take these observations one at a time.

7 I did not require the government to respond because I see no

8 reason to depart downward on the motion to depart under

9 section 5H1.1 or 5H1.46 of the guidelines.

10 With regard to the first of those, the guidelines say

11 age is not ordinarily relevant in determining whether a

12 sentence should be outside the applicable guideline range.

13 5H1.4 says the same thing with regard to physical condition.

14 Both of those, however, would permit a departure, and I

15 do recognize that I have the discretion to depart. Both of

16 those would permit a departure in the extraordinary case if,

17 for example, Mr. Hayes were elderly and infirm, as 5H1.1

18 says or if he had an extraordinary physical impairment as

19 5H1.4 says.

20 He is neither elderly nor infirm, nor does he have an

21 extreme estraordinary physical impairment. Therefore the

22 Court will not depart downward. However, I do note that he

23 has some physical problems. We are, as we are sitting in

24 Lexington now, just a few miles from the Federal Medical

25 Center here. And I do note that he has had some physical

 

Page 41

1 problems and I will address that in the sentence.

2 So that first - that motion to depart is denied.

3 With regard to the range of sentence, Mr. Hatfield is

4 correct, 5G1.1 in the guidelines says under section A,

5 quote, where the statutorily authorized maximum sentence is

6 less than the minimum of the applicable guideline range, the

7 statutorily authorized maximum sentence shall be the

8 guideline sentence. Therefore, there is really not much

9 dispute about that.

10 Notwithstanding the - it's a rather creative argument -

11 the Court will then not use the guideline range but will

12 defer rather to the statutory sentence.

13 Finally, with regard to obstruction of justice, it is

14 tempting in this case to range rather broadly and talk

15 generally about Mr. Myers or about the CIA and so forth.

16 However, this boils down to Mr. Hayes versus the tapes. And

17 Mr. Hayes testified, I heard all - I believe it was nine

18 tapes and I heard what was on there. Mr. Hayes admitted

19 saying what was on there, he just had a different version

20 for his intent.

21 I will note that I believe Mr. Hayes was not telling the

22 truth when he testified that he had not discussed with

23 Lawrence Myers the notion of getting someone to do a job for

24 him. I can't remember the phrase that was used, but it was

25 basically that he wanted a hit man. And I have to credit

 

Page 42

1 Mr. Myers for that, because the later call to Mr. Hayes from

2 the FBI occurred. And because when the call from Don

3 Yarbrough did occur, Mr. Hayes immediately started engaging

4 in the conversations about the - about the requested hit.

5 So I do credit that - that testimony, or I should say I

6 discredit Mr. Hayes' testimony whether he was asked whether

7 he had discussed the matter with Lawrence Myers.

8 Now, parenthetically, let me note that I'm not satisfied

9 Lawrence Myers was fully truthful at this trial. Nothing I

10 say should indicate that I believe everything Lawrence Myers

11 said. I discredit Mr. Hayes' testimony on that particular

12 point only because later events which I have just recounted

13 prove that Mr. Hayes was not - was not telling the truth.

14 But I don't think I have to talk about Mr. Myers'

15 credibility overall as a witness. Nor do I think I have to

16 address whether Mr. Hayes is, ever has been or ever will be

17 an operative for the CIA. I think the broad issue of

18 Mr. Myers' credibility and the broad issue of whether

19 Mr. Hayes is now or ever has been a CIA operative are

20 essentially red herrings. They are not the issue in this

21 case.

22 I do have to make specific findings with regard to

23 obstruction of justice. I think the obstruction of justice

24 enhancement should be applied here. I have reviewed in

25 anticipation of this hearing Mr. Hayes's testimony. And I

 

Page 43

1 will point out that in addition to his denial that he had

2 ever discussed with Lawrence Myers this whole notion of

3 killing his - his son, that is Mr. Hayes' son, there are

4 other specific areas of his testimony that were not

5 truthful.

6 He testified specifically that he suspected that this

7 call from Don from Alabama was a setup. The Court

8 discredits that.

9 He testified that he hoped or figured that he would be

10 able to put on the FBI - and this is at page 197 of the

11 transcript - put on the FBI and get them caught in a trap.

12 In other words, in trying to hire out for murder, I thought

13 I would give them some nice present. The Court discredits

14 that testimony.

15 At pages 201 and 202 and on into 203 of Mr. Hayes'

16 testimony, Mr. Hayes is asked whether it sounds on the tapes

17 as though he's part of a scheme. And Mr. Hayes answers:

18 Well, a lot of it I'm pumping him, I'm just letting him get

19 deeper. As the man said, he thought he was being a good

20 actor, but I can show you numerous times where the man

21 messed up on stuff he was saying. He wasn't playing the

22 part very well.

23 Did you ever have intention of harm coming to your son,

24 Mr. Hayes?

25 And his response was: No, sir, not then, now or ever.

 

Page 44

1 Question: Do you fear for the safety of your son as a

2 result of any of your actions here, sir?

3 Answer: No, sir, none.

4 Question: And why not?

5 Answer: He was never in danger, nothing ever going to

6 come of it.

7 Question: Did you know that?

8 Answer: Sure.

9 Then on page 204 the Court also discredits this

10 testimony by Mr. Hayes.

11 Question: There was a question advanced by Mr.

12 Yarbrough as to whether you wanted the body found or not.

13 What's that about?

14 Answer: Well, very simple. Anybody, and I'm sure that

15 everybody just about knows that a person goes missing, they

16 are not legally declared dead for seven years, or five or

17 seven years. That would show that it was preposterous to

18 start with, because it would have advantaged nobody's point

19 of view. If and when and which has happened here, if it

20 reversed on me, I could show what I was doing.

21 The Court also discredits the testimony at pages 212 and

22 13 where Mr. Hayes denies he was ever a threat to his son

23 and denies that he talked with anyone aside from

24 Mr. Yarbrough about this.

25 The Court also discredits Mr. Hayes' testimony on page

 

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1 213 that he believed all along this Mr. Yarbrough was an

2 agent. And the Court discredits Mr. Hayes' testimony that

3 he did not believe Mr. Yarbrough would bring harm to his

4 son.

5 Then I think there is one more instance here. I don't

6 know which tape, but it was one of the ones toward the end

7 where Don Yarbrough called Mr. Hayes and said the weather in

8 Alabama was good, and that was an agreed-upon code phrase

9 between Mr. Hayes and Don. And this testimony is at pages

10 65 and 66 of day five of the transcript.

11 Question: Now, your next conversation with Don was on

12 October 21st. And that's when Don called you and told you

13 the weather in Alabama was absolutely gorgeous, correct?

14 Answer: I believe that was the statement.

15 Question: And you inquired about him if he was sure or

16 not. So you were inquiring about whether or not he was sure

17 the job had been done, yes or no?

18 Answer: No, sir. No, sir, I was sitting there having

19 some fun out of him because I knew it had been - it had not

20 been done.

21 Those are the areas of Mr. Hayes' testimony which the

22 Court specifically discredits.

23 As I said, with regard to guilt or innocence and with

24 regard to obstruction of justice, the issue is not Myers,

25 the issue is not the CIA, the issue is Mr. Hayes versus the

 

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1 tapes. And the Court discredits Mr. Hayes' theory about

2 these tapes. So that objection is denied as well.

3 Let me just check my notes here.

4 All right. Now, having said that, let me say that the

5 Court will adopt the factual findings and guideline

6 applications that are set out in the presentence

7 investigation report. Based upon that, the Court finds that

8 the appropriate sentencing guideline range would normally be

9 151 to 188 months, based upon a total offense level of 34

10 and a criminal history category of 1. However, in this

11 particular instance, the statutory maximum sentence is 120

12 months. And pursuant to section 5G1.1(a) of the guidlines

13 the Court declines to impose a sentence within the guideline

14 range and defers rather to the statutory maximum.

15 So pursuant to the Sentencing Reform Act of 1984, it is

16 the judgment of this Court that the defendant Chalmer Hayes

17 is hereby committed to the custody of the Bureau of Prisons

18 to be imprisoned for a term of 120 months. The Court will

19 require that he begin service of his sentence immediately,

20 and he shall forthwith be transported to the Federal Medical

21 Center in Lexington to begin service of his 120 month

22 sentence. The Court will require his immediate

23 transportation to the Federal Medical Center so that he may

24 be medically evaluated and may be medically monitored,

25 pending his ultimate designation by the Bureau of Prisons.

 

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1 Upon release from imprisonment, the defendant shall be

2 placed on supervised release for a term of two years.

3 Within 72 hours of release from custody by the Bureau of

4 Prisons, the defendant shall report in person to the

5 probation office in the district to which he is released.

6 While on supervised release, the defendant shall not

7 commit another federal, state or local crime, shall comply

8 with standard probation conditions, which will be given to

9 you and explained to you, Mr. Hayes, and the defendant shall

10 comply with these additional conditions:

11 First, the defendant shall not illegally possess a

12 controlled substance.

13 Based upon the Court's findings, excuse me, the

14 defendant does not possess a history of substance abuse and

15 therefore any drug testing condition is suspended.

16 The defendant also shall not possess a firearm or

17 destructive device.

18 It is further ordered that the defendant shall pay

19 immediately to the United States a special assessment of

20 $100. If the defendant is unable to pay immediately, the

21 defendant shall participate in the inmate financial

22 responsibility program during the period of incarceration.

23 The Court further finds that the defendant does not have

24 the financial ability to pay a fine and the Court will

25 therefore waive the fine in this case.

 

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1 That is the sentence which I propose to impose,

2 Mr. Miller. Other than those which you have stated, do you

3 have any objection to that sentence?

4 MR. MILLER: Other than those we've stated, none,

5 Your Honor.

6 THE COURT: Mr. Hatfield, any objection?

7 MR. HATFIELD: No, Your Honor.

8 THE COURT: Very well. The sentence is imposed as

9 stated. I will ask the Court to read Mr. Hayes his appeal

10 rights. And Mr. Hayes you need to listen this, please.

11 THE CLERK: You are now notified by this Court

12 that you have a right to appeal your case to the Sixth

13 Circuit Court of Appeals, which on proper appeal will review

14 this case and determine that there has or has not been error

15 of law. If you do not have sufficient money to pay for the

16 appeal, you have a right to apply for leave to appeal in

17 forma pauperis, which means you may appeal without paying

18 for it. If you are without the services of any attorney and

19 desire to appeal and so request, the clerk of this Court

20 shall prepare and file forthwith notice of appeal in your

21 behalf. This notice of appeal must be filed within 10 days

22 from the date of entry of this judgment.

23 If you do not have sufficient funds to employ a lawyer,

24 the Court of Appeals may appoint your present lawyer or

25 another to prosecute the appeal for you. You may request to

 

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1 be released on a reasonable bond pending the appeal.

2 THE COURT: Mr. Hayes, did you hear and understand

3 what she just read to you?

4 DEFENDANT HAYES: Yes, ma'am.

5 THE COURT: All right. I would like for you to

6 sign a notice acknowledging that you were advised of your

7 notice of right of appeal. And there is a copy there for

8 your record as well.

9 MR. MILLER: Your Honor, in that regard, Mr. Dean

10 and I are here, and because of problems out of anybody's

11 control, Mr. Hayes wasn't able to get here early. We were

12 here early to talk to him. There were two individuals that

13 have been on his visiting list working with us, getting

14 funds for transcripts we ordered and stuff like that.

15 What I would like to be able to do is be able to take

16 Mr. Dean, Mr. Hayes, and myself and Ms. Hellman and

17 Ms. Philpot, who have worked on those specific issues with

18 us, and sit down and explain what's going on so they would

19 know what's happening and they can get the funding together.

20 We have so many days to file a notice, so many days to file

21 an appeal. We have to deal with ordering transcripts and

22 all of that kind of mess. And they are the ones who have

23 been working with us on that.

24 I took a period of eight days to get him on the phone

25 last, starting with Monday a week ago until this past

 

Page 50

1 Tuesday. Notwithstanding the problems we had before, the

2 order you entered when we were in court in April, somehow a

3 block had gotten on it again. It was an interesting mess,

4 but it was a real mess.

5 THE COURT: Let me just cut to the chase here,

6 Mr. Miller. You will be afforded some time now to speak

7 with your client. The marshals can give you a room in which

8 you may visit with him, you and Mr. Dean. And if you have

9 people who are working with you, I understand that, but that

10 will be up to the marshals to determine exactly how to - how

11 to work that out right now.

12 You take some time now while you are here in

13 Lexington --

14 MR. MILLER: Right.

15 THE COURT: -- to visit with him and to make

16 whatever arrangements you need - you need to make. I am not

17 inclined to allow large groups of people in.

18 MR. MILLER: No, no.

19 THE COURT: And I would think that the attorneys

20 and one or perhaps two assistants would be sufficient.

21 MR. MILLER: That's all we are asking for, Your

22 Honor.

23 THE COURT: Okay. Are there any other issues that

24 we need to address?

25 MR. MILLER: Yes, Your Honor. You have authority

 

Page 51

1 to make a recommendation of the Lexington medical facility.

2 THE COURT: Is that the recommendation you want me

3 to make?

4 MR. MILLER: Yes.

5 THE COURT: All right. That's the recommendation

6 I will make. In the alternative, do you wish me to

7 designate or to request that the designation be made in a

8 facility closest to his home in?

9 THE COURT: The medical facility closest to his

10 home?

11 MR. MILLER: No, Your Honor.

12 THE COURT: All right. I will request that the

13 Bureau of Prisons assess Mr. Hayes medically in order to

14 determine whether he should be placed in a medical facility.

15 I will recommend that he be placed in the Federal Medical

16 Center in Lexington. In the event that he is placed in a

17 Federal Medical Center but is not placed in Lexington, I

18 recommend that he be placed in the facility nearest his

19 home. In the event that he is not designated to a federal

20 medical center, I will request that he be placed in the BOP

21 facility nearest his home. I think that covers all the

22 bases.

23 MR. MILLER: Thank you.

24 THE COURT: Anything else, Mr. Miller?.

25 MR. MILLER: No, Your Honor.

 

Page 52

1 THE COURT: Mr. Hatfield, have I overlooked

2 anything on behalf of the government?

3 MR. HATFIELD: Nothing I am aware of, Your Honor.

4 THE COURT: All right. Mr. Hayes, I wish you

5 luck. I - I hope that you will find some opportunity here

6 and take advantage of it, and I wish you luck.

7 I will ask the marshal to announce a recess of the Court -

8 or actually to announce that court is adjourned today.

9 (A recess was had at 3:14 p.m.)

10 CERTIFICATE OF REPORTER

11 I, Nathan F. Perkins, official court reporter for the

United States District Court, do hereby certify that the

12 foregoing is a true and correct transcript of the proceedings

had in the above-described action.

13

14 _____________________________________

Nathan F. Perkins Date

15

16

17

18

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