-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> --[2]-- 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 Page 45 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 Page 46 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. Page 47 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. Page 48 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 Page 49 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 Page 53 ----- 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! These are sordid matters and 'conspiracy theory', with its many half-truths, misdirections and outright frauds is used politically by different groups with major and minor effects spread throughout the spectrum of time and thought. That being said, CTRL gives no endorsement to the validity of posts, and always suggests to readers; be wary of what you read. 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