-Caveat Lector- from: http://www.aci.net/kalliste/hayes970725.htm <A HREF="http://www.aci.net/kalliste/hayes970725.htm">Charles S. Hayes Sentencing Transcript</A> --[1]-- 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. --[cont]-- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, Omnia Bona Bonis, All My Relations. Adieu, Adios, Aloha. Amen. Roads End Kris DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance�not soapboxing! 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