Appendix — Roberts v. United States

APPENDIX

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 78-1793

WINFIELD L. ROBERTS, ae

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition For Certiorari Filed May 30, 1979.

Certiorari Granted October 1, 1979.

aS EEE ET TE ET EE TS

Washington. OC. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

1. Relevant Docket Entries

.Motion For The Court To Recuse Itself From

Sentencing The Defendant,Or,In The Alternative

To Make The Sentences On Counts 2 and 5

Concurrent With Each Other

.Government’s Opposition To Motion For The

Court To Recuse Itself From Sentencing The

Defendant, Or, In The Alternative To Make The

Sentences On Counts Two And Five Concurrent

With Each Other

. Government’s First Memorandum On Sentencing

. Government’s Second Memorandum On Sentenc-

Pe aera aera chs eke ate SNe Sew 6

6. Sentencing Transcript

. Statements of Reasons for Denial of Bond Pend-

ing Appeal By District Court

. Notation As To Where The Relevant Opinions

And Judgments Below May Be Found

Page

42

. 45

APPENDIX

Supreme Court of the Anited States

OCTOBER TERM, 1979

No. 78-1793

WINFIELD L. ROBERTS,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX

United States District Court For The District Of

Columbia

United States of America

V. Crim. No. 75-619

1. Charles J. Thornton a/k/a Boo

2. Winfield L. Roberts a/k/a Win

App. 2

RELEVANT DOCKET ENTRIES

Mar. 20, 1978 #2: Plea not guilty withdrawn; Plea

Guilty To Counts 2 and 5 (unlawful Use of Com-

munication Facility, 21 U.S.C. 8

a 43(b)); referred;

Govt. reserved right to allocute.

Rep: D. Bossard Pratt, J

Mar. 28, 1978 #2: Motion For the Court to Recuse

itself from sentencing deft. or in the alternative to

make the sentences on cou

| nts 2 and § concurr

with each other. “

April 6, 1978 #2: Opposition of Govt. To Motion for

the court to recuse itself from sentencing the deft. or

in the alternative to make the sentences on counts 2

and 5 concurrent with each other.

April 19, 1978 #2: Memorandum of Govt. on Sen-

tencing. c/s

April 21, 1978 #2: Sentence: Count 2, One year to

four years, Count 5, one year to four years, said

sentence to run consecutively, plus 3 years Special

parole, Sentence to be served in a Federal Institution

Remaining counts dismissed.

Deft committed Commitment issued.

Rep. D. Bossard Pratt, J

App. 3

[TITLE OMITTED IN PRINTING]

MOTION FOR THE COURT TO RECUSE

ITSELF FROM SENTENCING THE DEFEN-

DANT OR, IN THE ALTERNATIVE, TO

MAKE THE SENTENCES ON COUNTS 2

AND 5 CONCURRENT WITH EACH OTHER

For the reasons stated in both our motion to have

the court recuse itself and the petition for a writ of

mandamus or prohibition, we respectfully move the

Court to recuse itself from sentencing the defendant

upon his guilty pleas herein.

II.

Count 1 of the indictment charges the defendant and

Charles ‘‘Boo” Thornton with a conspiracy to violate

the federal narcotic laws pertaining to heroin. (21

U.S.C. §846). Overt acts 1-4, in support thereof, allege

use of a communication facility, ie., a telephone, to

further the objects of that conspiracy. It was conceded

at the time the plea was taken on March 20, 1978, to

substantive counts 2 and 5, that those counts are

precisely the same as overt acts 1 and 4 respectively.

Since the gist of a conspiracy is a criminal agreement or

partnership, it is our contention that, as a matter of

law, consecutive sentences cannot be meted out for

violations of counts 2 and 5 which reflect acts in

furtherance of the conspiracy and which were an

integral part of but a single criminal enterprise or

scheme. If we are incorrect in this, then the Govern-

App. 4

ment could have charged the defendant with each of

the 50 or more alleged phone calls, i.e., 50 substantive

phone counts, and the defendant would have faced a

maximum liability of 15 years on the primary con-

spiracy charge and over 200 years on the charges which

but breathed life into that conspiracy—an intolerable

result we submit. In commenting on the rule of lenity,

Judge Leventhal observed the following for the Court

en banc:

“Obviously there is a need to be careful to

prevent injustice when what is essentially a single

course of conduct may be prosecuted as more than

one offense, under more than one statutory provi-

sion. Such injustice is obviated by the rule pro-

hibiting the imposition of consecutive sentences, in

appropriate cases, even when the defendant has

committed two or more legally distinct offenses.”

Fuller v, United States, 132 US. App. D.C. 264,

289, 407 F.2d 1199, 1224 (1968).

Although this approach clearly mandates concurrent

sentences in the case at bar, our research has revealed

no case in this circuit or any other circuit which has

specifically addressed this question.

We would further note that, in our experience, were

this case in court for the first time with no prior

sentencing history, we would expect the sentencing

Judge to impose concurrent sentences upon the guilty

pleas—indeed, we regard this as common practice in this

courthouse. Therefore, we urge that the Court’s prior

sentence upon the defendant’s prior plea not affect

what would be the normal sentencing procedure at

present.

Furthermore, we know of no case in this jurisdiction

where consecutive sentences were imposed for violations

App. 5

of 21 U.S.C. §843(b) (counts 2 and 5) and we have

found no appellate opinion from any circuit ea

telephone counts resulted in anything but a.

sentences as a matter of fact. gro United Sta

| F.2d 906 (8th Cir. ;

aie. we respectfully urge — the sentences

herein or counts 2 and 5 be concurrent.

Respectfully submitted,

ALLAN M. PALMER

1707 N Street, N.W.

Washington, D.C. 20036

785-1250

[CERTIFICATE OF SERVICE OMITTED]

{TITLE OMITTED IN PRINTING]

‘ TION TO MO-

GOVERNMENT’S~ _OPPOSI é

TON OR A SENTENCING. THE. DEFEN-

SELF FROM \SEN 4

TERNATIVE T

DANT, OR, IN THE AL

MAKE THE SENTENCES ON ggg ho

AND FIVE CONCURRENT WIT

OTHER

The United States of America, by its attorney, hi

United States Attorney for the District of Colum =

respectfully opposes the defendant’s motion on

following grounds:

~ TIF cone i i ab

‘If concurrent sentences are imposed, we sage ope

argument I, supra, after consultation with and c

defendant.

andon

App. 6

I.

Both sides have previously filed written memoranda

addressed to the recusal issue. We adopt our previous

Pare and urge the Court to reaffirm its earlier

€cision not to recuse itself.

The defendant argues that consecutive sentences

cannot be imposed on his f.

actual plea of guil

counts two and five of the indict ae tes

were an integral part of but a sin

or scheme”

ment because they

gle criminal enterprise

(Defendant’s motion at 1). We submit that

ha a ;

“aot 1S erroneous and flies in the face of

- tog tay and Five both allege violations of 21

= Ps (b) (unlawful use of a telephone to violate

€ Controlled Substances Act). Count Two alleges that

the phone was used on March 10, 1975, while Co ;

Five alleges its use on March 16. The Caine c we

of the indictment (Count One), which will be coe

at sentencing, alleged an unlawful agreement to ace

2 ] U.S.C. 841(a), the unlawful distribution and po

sion with intent to distribute heroin. sii

It is clear that each of the thirteen (13) completed

calls between Roberts and Charles ‘‘Boo” cause

could have been charged as separate and disti se

offenses. Katz v. United States, 369 F.2d 130, 135 ie

Cir.) 1966), rev’d on other grounds, 389 US ae

Consequently, consecutive sentences would hove b :

permissible. ~

Th ;

€ leading case on consecutive sentences, which the

App. 7

defendant overlooks, is Blockburger v. United States,

284 U.S. 299 (1932). There the defendant was con-

victed of three offenses arising from his sale of

morphine to the same purchaser on two separate days.

The Court found that even though the purchaser was

the same on each of the two days, and the two sales

occurred only hours apart, that each sale constituted a

separate offense under the Harrison Narcotic Act. The

Court affirmed the imposition of consecutive five year

sentences on each count even though the second and

third counts related to the same sale (the second

involved morphine not in the original stamped package

while ‘the third charged that the sale was not made in

pursuance of a written order). Notwithstanding that the

two sales were suggestive of a continuing scheme or

plan, the Court found that each sale was a separate and

distinct offense permitting the imposition of consecu-

tive sentences. If the sales of narcotics on separate days

are subject to consecutive punishment, logic requires

the same conclusion for the use of a telephone on

separate days. We submit that the reasoning and holding

of Blockburger controls the instant case.

It is also indisputable that had Roberts gone to trial

and been convicted of the conspiracy charge and the

four substantive telephone offenses that he could have

received consecutive sentences. The law is well settled

that a court may impose consecutive sentences for

conspiracy to commit a crime and its later accomplish-

ment because conspiracy requires proof of agreement to

commit a crime, but no proof of attempt, and the

substantive violation requires the latter, but not the

former. See, e.g. Curtis v. United States, 546 F.2d

1188, 1190 (Sth Cir. 1977) (sustaining separate sen-

tences for conspiracy to violate narcotics laws and

substantive violations); Nolan ». United States, 423

App. 8

F.2d 1031 (10th Cir. 1969), cert. denied, 400 U.S. 848

( ) (consecutive sentences for illegal use of tele-

phone (18 U.S.C. 1952) and conspiracy to violate 1952

proper); Tolliver v. United States, 224 F.2d 742 (9th

Cir. 1955) (an accused can properly be convicted of

App. 9

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that a copy of the feb

Government Opposition has been mailed to yoord

defendant, Allan M. Palmer, 1707 N Street, arom ‘

Washington, D.C. 20036 this 6th day of April, | ;

both conspiracy to violate narcotics laws and substan-

tive narcotics violations even though the overt act of

the conspiracy might also have been an offense which

was one of the substantive counts; the offenses are not

identical).'

WHEREFORE, we respectfully submit that the de-

fendant’s motion should be denied.

JOSEPH F. McSORELY

Assistant United States Attorney

Major Crimes Division

426 7389

{CAPTION OMITTED IN PRINTING]

NTENCING

Respectfully submitted, GOVERNMENT MEMORANDUM ON SE

. ° i en-

EARL J. SILBERT The United States of America has sondigesd ~

United States Attorney tencing memorandum in support of our req

DONALD E. CAMPBELL Court impose a substantial sentence of imprisonment,

and a substantia! fine, on Winfield L. Roberts, the

Assistant United States Attorney

: i tic drugs.

j j ivisi t herein, a supplier of narco

Wenhiiite eh iataanae — ps convenience of the Court and counsel, we

JOSEPH F. McSORLEY have attached a Table of Contents.

Assistant United States Attorney

Major Crimes Division

426-7389

"We are aware, of course, that where several statutory

violations constitute only a single offense, only one punishment

is proper. This is known as the “merger of offenses doctrine”

and its use is most vividly seen in bank robbery cases where an

accused is convicted of both bank robbery and entry of a bank

with an intent to commit a felony. In Prince v. United States,

352 U.S. 322 (1957), the Supreme Court held that the latter

crime merged into the former, and only one punishment was

appropriate. In the instant case, however, as we have already

shown, Roberts used the telephone on two separate days and

thus committed two separately punishable offenses, analogous to

the Blockburger case of two separate narcotic sales.

App. 10

TABLE OF CONTENTS

Page

A. ri gai OF THE MAJOR CRIMES DIVI-

B. PURPOSE OF THIS ALLOCUTION .... | .

C. INFORMATION WHICH MAY PROP aa

. ERLY BE

CONSIDERED BY A SENTENCING JUDGE

BACKGROUND OF THE DEFENDANT

THE GOVERNMENT’S RECOMMENDATION

APPENDIX (TRANSCRIPTS OF WIN.TO-

ptr IN-TO-BOO

Ommo

[CAPTION OMITTED IN PRINTING]

GOVERNMENT MEMORANDUM ON SENTENCING

The United States of America, by its attorney, the

United States Attorney for the District of Columbia

pursuant to 18 U.S. Code, 3577, 23 D.C. Code 103 sind

Quarles v. United States, D.C. Ct. App. No. 8759

decided December 31, 1975, and other authorities cited

herein, hereby informs the Court that the Government

will exercise its right of allocution at the sentencing of

the defendant, Winfield L. Roberts. We will recommend

that the defendant be sentenced to a substantial term

of imprisonment and a substantial fine pursuant to his

plea of guilty to 21 U.S. Code 846 which provides for

: to fifteen (15) years imprisonment and a $25,000

ine.

| The basis for our recommendation is the following

information concerning the defendant’s Criminal record

- BACKGROUND OF THECASE ........ 4

App. 11

and other background material which has been assem- q.

bled by the Major Crimes Division of the United States

Attorneys Office and the Narcotics Squad of the

Metropolitan Police Department. We respectfully submit

that this material, considered together with the facts of

the crime for which the defendant is to be sentenced, °

warrants the imposition of a substantial sentence.

A. Function of the Major Crimes Division

Preliminarily, we think it is germane to state thie

purpose of the Major Crimes Division (MCD). The

MCD’s primary function involves the investigation and

prosecution of major organized crime figures and/or

major criminal operations in the District of Columbia.

Its cases are brought in both the Superior Court and

the District Court. The Division’s caseload is selective

rather than voluminous. Its focus is on major criminal

figures and the immobilization of significant criminal

operations, particularly in the areas of narcotics, gambl-

ing and fencing.’ This, of course, necessitates the

coordinated, concentrated, intense efforts not only of

presecutors but of many investigative agencies, both

federal and local.

With respect to narcotics operations, it has been the

practice of MCD initially to identify a lucrative nar-

cotics trafficking enterprise and its hierarchical struc-

'MCD is the section of the United States Attorneys Office

which handled the legal investigation in “Operation Sting” which

thus far has resulted in the arrests of over 100 defendants and

the receiving of more than $2.4 million in stolen property.

App. 12

ture, learn the identities and activities of its principals,

and then to proceed to target certain of those indi-

viduals for surveillance and investigation. The investiga-

tive means often include electronic as well as physical

surveillance. Extensive use is made of special grand

juries which are empaneled for eighteen months. In

addition, undercover probes are utilized as frequently as

possible since such enterprises are generally more easily

penetrable from the “inside” than from the “outside.”

In the instant matter wiretaps and an undercover officer

were both employed with great success.

Because major criminal figures are usually very

suspicious, canny and circumspect, the more important

the offender's role in the enterprise, the less susceptible

he is to arrest and prosecution. Such figures tend to

erect, maintain and control criminal structures which

provide them great insulation from detection and arrest.

In cases such as this, where the essence of the offense is

a conspiracy, court-authorized wiretaps are invaluable

investigative aids.

B. Purpose of this Allocution

We propose by this written allocution to inform the

Court fully of the background of Winfield L. Roberts in

the field of narcotics trafficking so that in discharging

its sentencing function the Court will possess the fullest

information possible on which to make an informed

judgment. We believe that the contents of this allocu-

tion, combined with the overwhelming evidence of guilt

as shown by the taped conversations of Roberts and his

co-conspirator, Charles “Boo” Thornton (who is sched-

App. 13

uled to be tried on April 20 before the Honorable

Howard F. Corcoran) and Roberts’ confession, amply

warrant the imposition of a substantial term of im-

prisonment and a substantial fine.

C. Information Which May Froperly be Considered

by a Sentencing Judge

It is axiomatic that a sentencing judge may consider

a wide variety of information as to a defendant’s

background, character, and conduct, criminal and other-

wise, in imposing a sentence. The Supreme Court has

consistently held that even acts and conduct not

resulting in convictions may properly be considered. See

Williams v. New York, 337 U.S. 241, 246-247 (1948)

(it was proper for the trial judge to have considered

evidence of 30 other burglaries believed to have been

committed by the defendant); Williams v. Oklahoma,

358 U.S. 576 (1959) (the sentencing judge may

consider hearsay information which is relevant to the

crime and the defendant’s life); United States v. Majors,

490 F.2d 1321 (9th Cir. 1974) (a trial judge can

properly consider prior arrests and indictments not

resulting in convictions); United States v. Sweig, 454

F.2d 181 (2nd Cir. 1972) (the sentence was affirmed

where it was based on information not contained in the

pre-sentence report which included evidence of offenses

for which the defendant was acquitted).

Moreover, 18 U.S. Code 3577 provides:

No limitation shall be placed on the information

concerning the background, character and conduct

of a person convicted of an offense which a court

of the United States may receive and consider for

the purpose of imposing an appropriate sentence.

App. 14

As stated by the Court in Williams v. New York,

supra, 337 U.S. at 247:

A sentencing judge ...is not confined to the

narrow issue of guilt. His task ...is to determine

the type and extent of punishment after the issue

of guilt has been determined Highly relevant—if

not essential—to his selection of an appropriate

sentence is the possession of the fullest informa-

tion possible concerning the defendant’s life and

characteristics.

D. Backgrowe’ of the Case

In De.scsher 1974 the Postal Inspectors Oftice

notified the Metropolitan Police Department of sus-

pected large-scale narcotics trafficking by postal em-

Ployees and others. The Narcotics Squad thereafter

inserted an undercover policewoman in the Main Post

Office to attempt to unearth whatever illegal narcotic

activity existed. Before very long a number of suspects

had been identified. Working her way upward by

ingratiating herself with certain of the suspects by

buying large amounts of heroin (the purchases ranged

from $65.00 to $1,400.00), the undercover officer

(U/C) eventually came to meet Fletcher Bush, also

known as Dutchie, and Elaine Dorsey. She was re-

buffed, however, in her efforts to locate their supplier.

Amassing all the information they had gathered, appli-

cation was made to the Honorable George L. Hart, Jr.,

for a wire intercept on the telephone numbered

678-1091, listed at 3044 Stanton Road, which was

App. 15

believed to be the telephone of Benjamin T. Thornton,

a previously convicted narcotics felon.?

1. The Wiretap

The wiretap was operational for a period of fifteen

(15) days (March 4-18, 1975). It resulted in the

interception of about 585 completed calls (viz. where

conversations occurred between the caller and the

callee). Calls of both a gambling and narcotic-related

nature were intercepted. The instant case was one of

four indictments spawned by the wiretap. This is the

first indictment to reach a finding or verdict.

Among the calls intercepted were those between

Winfield L. Roberts (who identifies himself as Win) and

Charles Thornton (identified as Boo). The conversations

were clearly narcoti. -related. Various code words were

used by the speakers to attempt to disguise the subject

matter of their calls, e.g., “tighten it up” (improve the

quality of the heroin, it’s too weak), “I need a little

something” (the speaker wants heroin), “boy” (“boy”

refers to heroin, “girl” to cocaine), “meet ya on the

same street” (“‘street”” means a $100.00 bag of heroin—

one spoon), and “‘half-street”’ (a $50.00 bag).

All of the intercepted conversations between Roberts

and Thornton resulted from calls placed by Roberts to

Thornton. These conversations establish beyond any

doubt that Roberts was Thornton’s supplier. We invite

2As the police were subsequently to learn, this was the

residence of Benjamin’s brother, Charles “Boo” Thornton, him-

self a previously convicted narcotics felon.

App. 16

the Court’s attention to the attached transcripts of the

Win-to-Boo calls, including calls of the accomplices

Dutchie and Elaine.?

A chart of the conspirators in this investigation and

their roles would look like this:

WINFIELD L. ROBERTS

(supplier) (wholesaler)

CHARLES J. THORNTON

af (retailer)

FLETCHER BUSH “LAINE DORSEY

(pusher) * Pa (pusher)

UNDERCOVER OFFICER

(purchased heroin from both Bush and Dorsey)

2. The Confession

When it was finally learned just who “Win” was, he

was asked to come into the United States Attorneys

Office. He was advised of his rights, was told of the

existence of the tap, was told that we were desirous of

obtaining his cooperation in testifying against Thornton,

and that the nature and extent of his cooperation

would be determinative of the charges which could be

brought against him.*

Roberts admitted that he was the one whose conver-

sations with Thornton had been intercepted and that he

had used his girlfriend’s (Cecilia Payne) Jaguar to

. After their arrests in connection with this case, Dutchie and

Elaine agreed to cooperate and testify for the Government

against Boo Thornton. Each testified before the Grand Jury and

each later pleaded to a narcotics felony. Both are currently on

probation. During the entire conspiracy they never had any

dealings with Roberts. Their role can accurately be described as

Boo’s “pushers.”

*At the Miranda suppression hearing, Judge Corcoran found

that there was a voluntary, intelligent and knowing waiver of

rights.

App. 17

deliver the drugs to Thornton’s apartment. He also said

that “street” referred to a $100.00 bag of heroin and

“half-street”” to a 350.00 bag.

Roberts declined to testify against Thornton and

refused to name his supplier of narcotics. Accordingly,

he was arrested and indicted.

Together with the surveillances which identified

Roberts and the Jaguar as arriving at Thornton’s

apartment shortly after certain drug-related conversa-

tions, the wiretap and the confession amounted to very

strong evidence of guilt.

E. Background of the Defendant

Roberts will soon be 32 years old. He is single,

unemployed and attends Federal City College. As far as

we know, he has no disabling injuries or sicknesses and

is employable.

In 1968 Roberts and three others were convicted of

eleven (11) counts of an indictment: unauthorized use

of a vehicle (one count), federal bank robbery (5

counts), and local bank robbery (5 counts) (22 D.C.

Code 2204, 18 U.S. Code 2113, 22 D.C. Code 2901

respectively). The conviction was the subject of a

written opinion by the Court of Appeals: Earl Coleman,

et al. v. United States, 137 U.S. App. D.C. 48, 420

F.2d 616 (1969). Roberts was sentenced to one (1) to

five (5) years on the unauthorized use of a vehicle

charge and five (5) to fifteen (15) years on the bank

robbery charges, the sentences to run concurrently. He

is currently on parole until February 1983.

One of the most interesting facts to consider about

Roberts is his source of income. It is somewhat ironic

App. 18

that a man who has been unemployed since he was

released from prison several years ago manages to squire

heroin about in a 1973 Jaguar automobile.’ Rarely

have narcotic drugs been transported in such style.

Roberts, who is without any visible means of support,

nonetheless manages to dress in very expensive attire.

Moreover, he manages to have sufficient funds to have

retained Mr. Sacks as his attorney. Roberts is living

proof that sometimes it pays to be poor.

It is clear from the investigation that the source of

Roberts’ income is trafficking in heroin. He has profited

from supplying heroin to Charles Thornton.‘ While

industries may pollute the atmosphere and our water by

the dumping of chemical wastes, Roberts’ activities

resulted in the pollution of people of this city. And his

motive was clear: money. He himself is not an addict,

yet addicts are his prey and people like him feed their

insatiable habits. :

What is even more reprehensible to consider is that

he has no real need for money—no wife or children to

support, no house repairs, no exorbitant medical bills,

etc.... He pays little tuition at Federal City College.

*The automobile is listed in the name of Roberts’ girlfriend,

Cecilia Payne of 4300 Vermillion Avenue, Oxon Hill, Maryland.

Miss Payne is a Government employee who earns about $12,000

a year by her own admission, who owns the Jaguar which cost

her $6,650 to purchase in late 1974 and who lives in a

rent-subsidized apartment.

*We have no evidence of whether he supplied anyone other

than Thornton. The wiretap conversations of Roberts revealed

him to be a man of few words who was not given to talk freely

about his clientele.

——<F —

He drives his girlfriend’s Jaguar. He appears to live with

her at her apartment. In short, it is people like Roberts

who are so avaricious that they don’t know when to

well-enough alone. .

goto aatoaoaaP felons who work their way

through college by supplying heroin on-call have abused

the concept of parole and are deserving of stern

treatment.’

F. The Government’s Recommendation

The United States Attorney’s Office does not often

file a written allocution. When we do, we do not do it

lightly or unthinkingly because sentencing 1s obviously

one of the most important parts of the criminal

process—important to both the community and the

offender. Having invested thousands of man-hours and

thousands of dollars in this entire investigation, we

believe we have obtained reliable and accurate informa-

tion about this narcotics conspiracy and its CO

conspirators, including Roberts—the main supplier—

which can be extremely useful to the Court in

determining the appropriate sentence. We strongly

believe that this is an appropriate case and an appro-

priate offender where a written allocution can bring to

7We believe that one who pleads guilty prior to trial is

entitled to some favorable consideration because of savings i

judicial economy. This does not mean, of course, that one . )

goes to trial should be penalized if convicted merely for

exercising a constitutional perogative and we have never known

any court to hold such a view.

App. 20

the Court facts it may not otherwise obtain.’

As we noted at the outset, we recommend a

substantial sentence of incarceration and a fine, In

attempting to balance the needs of society against the

needs of Roberts, we have considered the common aims

of punishment: rehabilitation, deterrence, and the pro-

tection of society. Roberts already has had the experi-

ence of rehabilitation within the confines of a prison.

In fact, one of his comments during his confession was

that he met Thornton while they were together at

Lorton. The most his stay at Lorton seems to have

accomplished was to divert Roberts from violent crime

(bank robbery) to the surreptitious, shadowy type

crime of conspiring to distribute narcotics.

As for deterrence, we firmly believe that while jail is

not a panacea for all the ills of society, that where a

major drug dealer is convicted a substantial term of

incarceration and fine does have an impact that rever-

berates throughout the city and makes people think

twice before engaging in a narcotics enterprise. As with

many other things in life, deterrence is difficult to

uccurately gauge or measure. But we know from

experience that many criminals often boast of beating

the system by getting free lawyers, free appeals, lenient

sentences and short prison. stays. Stern and_ stiff

punishment of a dealer-as opposed to a “user”:—is a

very useful way of putting people on notice that such

crimes will not pay.

*Even the diligent and conscientious members of the Proba-

tion Office could not be expected to be in possession of much of

the material disclosed in this allocution since their contact with

the offense and Roberts is much briefer than that of the officers

who were the primary investigators.

——

App. 21

Lastly, this is the type of offender who is just as

much, if not more, of a danger to the community than

an armed robber. His methods are more insidious and

cunning. We think it fair to state that narcotics,

particularly heroin, wreak havoc on the lives of those it

touches. Its cost in human life and misery 1s incal-

culable. Society needs to be protected from men such

as Roberts who show so little regard for the health and

welfare of its citizens.

Respectfully submitted,

EARL J. SILBERT

United States Attorney

DONALD E. CAMPBELL

Assistant U.S. Attorney

Chief, Major Crimes Division

JOSEPH F. McSORLEY

Assistant U.S. Attorney

Major Crimes Division

Telephone 426-7389

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a copy of the foregoing

Government motion has been mailed/hand-delivered to

Fred Sacks, Esquire, 1030 15th Street, Northwest,

Washington, D.C., this 25th day of March, 1976.

JOSEPH F. McSORLEY

Assistant U.S. Attorney

Major Crimes Division

Telephone 426-7389

App. 22

[CAPTION OMITTED IN PRINTING]

GOVERNMENT’S MEMORANDUM ON SENTENCING

The United States of America, by its attorney, the

United States Attorney for the District of Columbia,

respectfully submits the following memorandum as an

aid to the Court in passing sentence.

I. BACKGROUND

Winfield Roberts first pleaded guilty (Alford) in this

case to conspiracy to violate the Controlled Substances

Act in March 1976. This Court sentenced him to four

(4) to fifteen (15) years, a special parole term of three

(3) years, a $5,000 fine, and recommended incarcera-

tion at Atlanta Federal Penitentiary

In December 1977 the D.C. Circuit Court of Appeals

reversed Roberts’ conviction for reasons set forth in a

lengthy opinion and remanded the case. On January 26,

1978, this Court released Mr. Roberts on a $5,000

bond to enable him to prepare his defense.

On March 20, 1979, Mr. Roberts entered a factual

plea of guilty to Counts Two and Five of the

indictment, both of which allege unlawful use of the

telephone to facilitate the distribution of heroin. The

Government retained the unconditional right to allocute

and Mr. Roberts was released on bond pending senten-

cing.

!

os ll

=

App. 23 |

II. SENTENCING RECOMMENDATION

It is the Government’s recommendation, for reasons

previously discussed in our written sentencing allocution

filed prior to the first sentence—his prior criminal

record, his culpability as the supplier for Charles ‘‘Boo”

Thornton, etc.—that maximum consecutive sentences be

imposed.

For the reasons previously noted in our opposition

motion opposing recusal and making the sentences

concurrent (filed April 6, 1978), we maintain that the

Court can properly impose consecutive sentences.

Accordingly, we respectfully request the Court to

impose the following sentence:

A. Imprisonment and Fine

1.On Count Two 16 to 48 months and a fine

of $5,000.

2. On Count Five, 16 to 48 months, consecutive

to Count Two.

Mr. Roberts should be given credit for time

served.

B. Special Parole Term

Three years on each count.

Respectfully submitted,

EARL J. SILBERT

United States Attorney

DONALD E. CAMPBELL

Assistant United States Attorney

Chief, Major Crimes Division

JOSEPH F. McSORLEY

Assistant United States Attorney

Major Crimes Division

(202) 426-7389

App. 24

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY that a copy of the foregoing

Government’s Memorandum on Sentencing has been

hand delivered to attorney for defendant, Allan M.

Palmer, 1707 N Street, Northwest, Washington, D.C.

20036, this 19th day of April, 1978.

JOSEPH F. McSORLEY

Assistant United States Attorney

Major Crimes Division

426-7389

App. 25

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 75-619

WINFIELD L. ROBERTS,

Defendant. SENTENCING

TRANSCRIPT OF PROCEEDINGS

Washington, D.C.

April 21, 1978

The above-entitled matter came on for hearing in

open court at 9:35 o’clock a.m , before:

THE HONORABLE JOHN H. PRATT,

United States District Judge.

APPEARANCES:

On behalf of the Government:

JOSEPH F. McSORLEY, ESQUIRE,

Assistant United States Attorney.

On behalf of the defendant:

ALLAN M. PALMER, ESQUIRE

App. 26

[2] PROCEEDINGS

DEPUTY CLERK: United States of America

versus Winfield L. Roberts, Criminal Number 75-619.

Mr. McSorley for the Government, Mr. Palmer for the

defendant.

THE COURT: Mr. Palmer, do you or Mr.

Roberts have anything you wish to say before sentence

is imposed?

MR. PALMER: Yes, I would, Your Honor. |

guess Your Honor knows normally I don’t usually say

too much at sentencing procedures, which is my

practice. In this case I have some comments to make,

however.

Now, initially we filed a motion as to whether

consecutive or concurrent sentences in the matter

should be imposed, and Mr. McSorley filed a pleading

in the matter, also. | would like to first address myself

to that question to begin with, if the Court deems it

necessary.

THE COURT: You filed a motion for us to

recuse from sentencing, or in the alternative to make

the sentences concurrent, and you indicated that you

would not press your motion to recuse if we made

these sentences concurrent.

MR. PALMER: That’s correct, Your Honor.

THE COURT: Well, we are not committing

ourselves. It seems to me the matter of our recusal was

taken care of on your petition for writ of mandamus,

but I will hear from you on the matter of consecutive

versus concurrent sentences.

MR. PALMER: Yes, Your Honor. The case we

cited was [3] Fuller versus United States, which speaks

about the need to prevent injustice when essentially it

App. 27

is a single course of conduct which may be prosecuted

as more than one offense, under more than one

statutory provision. Such injustice is obviated by the

Court imposing consecutive sentences.

Now, in this case, at the time we took the plea

we made it clear that the two counts, two and five,

were part—

THE COURT: They were overt acts in the

conspiracy.

MR. PALMER: Yes sir. And our point is that

the conspiracy is the major crime. Conspiracy is

basically a conversation between two or more, what-

ever, and—

THE COURT: Whether or not the substantive

offenses were ever committed.

MR. PALMER: That’s true. And what we’re

saying is that these conversations breed life into the

conspiracy, and without the phone count you don’t

really have it. And under the rationale of the Fuller

case we think it would be appropriate to follow that

rule.

Let’s say you have 30 phone calls pursuant to a

conspiracy. We’re saying that you can’t impose 120

years, as a matter of law, for phone calls, but 15 years

for the main crime. I think it doesn’t flow, and that’s

why the rule as announced in Fuller would appiy to

this case.

Secondly, the Government cited Blockberger,

which was consecutive sentences under °70 statutes,

that was the [4] Jones-Miller and Harrison Act of some

time ago, and at the time when Justice Frankfurter said

turn the screws tighter on narcotic agents. Since then

we have the new set of statutes which are involved,

particularly the one statute, the so-called phone statute.

App. 28

THE COURT: Well, in Blockberger the man was

charged with separate offenses under the Harrison Act.

MR. PALMER: The Harrison and the Jones-

Miller; the Packaging and Stamp Act, as Your Honor

recalls from years ago.

THE COURT: I remember.

MR. PALMER: And the other one—

THE COURT: Forty-seven-o-four.

MR. PALMER: Right, those two statutes.

Aside from the legal argument, Your Honor has

a lot of experience in criminal cases, more than I do—l

have a fair amount, also. I think {* ‘air to say in my

experience that when you have a plea on two counts

such as this, Judges uniformly, in my experience at

least, give concurrent sentences as a matter of course.

In fact I know of no case in this courthouse, and I

think Mr. McSorley and Mr. Connor can corroborate

this if | am in error, or contradict it, in which a judge

of this Court ever gave consecutive sentences for two

phone counts. In fact the case that I had once, Ramsey

v. U.S., which went to the Supreme Court, Judge

Smith, there too on several phone counts, gave concur-

rent sentences. I have checked all [5] the advance sheets,

and I don’t know how many dozens of cases I’ve read,

including the Federal Reporter. I have found no cases,

as a matter of fact, in which any federal judge has ever

given consecutive sentences for two or more phone

counts.

I think based on that, based on the policy or

usual procedure in this courthouse, we think it only

fair, both under the law and the fact, that concurrent

sentences be imposed, and I sincerely urge that.

All right. Now, without getting into that issue,

the question of sentencing now comes up, and I really

wee er nanseven te Geb

Sn ee ee

App. 29

want to get into this a bit because of the Government’s

now famous allocution in the matter. We know that

during the course of this investigation there was this

phone tap directed at Boo Thornton for a couple of

weeks. As a result of that I believe six search warrants

were executed for gambling and narcotics as a result of

Mr. Thornton’s activities, people arrested, et cetera. At

that time no one knew Winfield Roberts from anybody

else.

During the course of the investigation, I think

on three occasions a green Jaguar was seen in the

vicinity. The girl that owned it, Cecilia Payne, came in

and said, “Yes, it’s my car, I loan it to my boyfriend.

He’s sitting outside.” “‘Who’s the boyfriend?” “Winfield

Roberts.”

The Government attorney and the other police-

men were there, and there was a bit of disbelief over

their good fortune. [6] In any event Winfield Roberts

comes in. Mr. Roberts made a statement to the police

at the time.

Now, during the conversations alleged between

this man and Thornton, the term “street” and “half

street” were used relative to narcotics. All right. They

asked Mr. Winfield Roberts about it, and he said,

“Yes”. I have a copy of his statement, which was given

to me by Mr. McSorley. They asked him if he knew

what was meant by the term “street” and “half street’,

because it was on the tap, and he said that “street”

meant a $100 bag, and “half street” meant a $50 bag.

He stated that when Boo was short on drugs he would

make these deliveries to Boo in the amounts of 50 and

$100 bags.

The target, Mr. Thornton, was indicted for

gambling, | think, and narcotic violations, which he

App. 30

pled to some and the Government dismissed as to

others. Mr. McSorley files his well-known allocution. |

don’t know if Judge Corcoran might have overreacted

to it or what, but in any event he placed Mr. Thornton,

the target, on probation in the matter.

Then we get here to Mr. Roberts. His case

comes to Court, they indicate to him “If you testify

against Thornton, or help us with who gave you the

drugs, whatever, we'll go light on you.” He says, “I

wasn’t that involved in it,” he refuses. He winds up

with a substantial sentence, which he, Mr. Roberts, was

somewhat surprised at, considering the course of events.

[7] When the Government says Mr. Roberts was

Boo’s supplier, et cetera, I think you have to look at

that in the context of $100, $50. The man obviously,

in my experience, was a runner for somebody. He did

these things not as a head of any organization or the

main supplier. It is clear to me, Your Honor, in this

thing he was, for the 100 or $50, whatever, giving to

Mr. Thronton for his personal use, and his statement

was corroborated by what? By the fact that at the time

of the search warrant, at Mr. Thornton’s residence,

what do they find? No drugs, really, some bottle-top

cookers, syringes, whatever, indicia, indications of nar-

cotics usage, just as he indicated. So I think this had to

be taken into context, Your Honor.

Now, the defendant has served almost two years

in Atlanta. Now, it is easy to say here, two years, three

years, four years, but I think it is something to consider

that night and day for two years this man has been

sitting in a jail in Atlanta, a federal penitentiary, and

that is a very serious thing that weighs on his mind.

Since he has been released in this case, Your Honor, |

think it is fair to say, | don’t know how many times he

OE Ws it

_ i

App. 31

has been calling me, but he doesn’t go out at night, he

has been looking for a job. But as Your Honor can

imagine, when someone knows he had a prior sentence,

when they know he is coming up for sentencing again,

it is very difficult for someone to say oh, sure, you’re

going [8] to be sentenced in two weeks, I’ll give you a

job, sure.

We got an indication. on Monday from Mr.

Pendergraph that he could have a job. I submitted that

to Your Honor’s chambers. I saw Mr. Connor yesterday,

Your Honor, indicating that the job is available.

I think in the context of this case, I think if

Your Honor would agree that concurrent time could be

served, he has already served over half of it, spent many

a day in Atlanta thinking about what happened. It is

not a case where the man has served no time and is

saying to Your Honor, do us a favor and put the man

on probation and he will straighten up. This man has

faced jail for almost two years in a maximum security

penitentiary, Your Honor.

THE COURT: How much did he see in

connection with the hold-up of the bank back in ’67?

MR. PALMER: At that time how long was he

incarcerated?

THE COURT: Yes. :

MR. PALMER: Five and a half years, Your

Honor.

THE COURT: He was on parole when this

matter arose.

MR. PALMER: I believe so.

THE COURT: I notice one of the matters you

submitted yesterday was a letter from Alzona J. Davis,

Director of Lorton Prisoner College Program, in which

he says that he has known Mr. Roberts for the past

App. 32

three years, and has found him to be quite cooperative

as a Student.

[9] Is Alzona J. Davis connected with Atlanta, even

though she’s at Lorton?

THE DEFENDANT: No. This was prior to me

going to Atlanta.

THE COURT: During the past three years you

were not a student of Alzona Davis, were you?

THE DEFENDANT: Yes, I was a student up

until my incarceration.

MR. PALMER: It sounds like she used inappro-

priate language. We all know where he was for the last

two years.

THE COURT: Also the letter from Pendergraph

that he had been accepted as a counselor in the Free

School for the District of Columbia.

MR. PALMER: Yes, Your Honor. As I say, |

can’t remember the time when I asked this Court for a

probationary sentence, based on the facts. I don’t think

I have ever done it in a lot of cases, but I think it is

really warranted in this case, based on what has

happened, what he has gone through. It is a case where

he came out, his girlfriend put up bond money, and you

know I’m not really getting compensated in this matter.

He is living with her because he can’t afford to live

anywhere else. He has opportunity for employment.

And I would even cite a case to Your Honor, in which

Your Honor in not dissimilar circumstances—

THE COURT: Are you talking about Bubble

Eyes Miles?

{10} MR. PALMER: No, no, Your Honor, Nine years

ago Charles Maynard was convicted of a serious shoot-

ing offense.

Pe Oe ee ne, ae Se sear te

App. 33

THE COURT: Gueory was the victim.

MR. PALMER: Yes. Your Honor gave him six

to 18 years. He was in jail about two and a half years.

The case was reversed on a legal point, came back,

Maynard pled to five counts. I happened to check the

record, and Your Honor placed him on probation after

a term of incarceration. Since that time Mr. Maynard

has not been in any trouble. I understand he is doing

well in the community, he has a legitimate business he

is running.

Mr. Roberts has impressed me as someone who

is really scared now. This two years in Atlanta, or less

than two years, has really affected him, Your Honor.

And if we’re wrong, if he doesn’t shape up, or do what

he’s supposed to do, you can put him in jail, and there

would be no problem with that. Mr. Connor would be

on him. Mr. Connor | have known for many years, he is

an excellent probation officer, as Your Honor well

knows. | think in this circumstance I am really asking

Your Honor to do this for us based on these facts, and

I think it is really warranted in this case, truthfully.

Thank you.

THE COURT: Mr. Roberts, is there anything

you want to say?

{11] THE DEFENDANT: Only Fm glad that this is

coming down to—we’re getting ready to resolve this,

and I would like to go on and get into my life, into the

future, with the counseling that I have been accepted

at, and get away from this, if you can see it possible.

THE COURT: Mr. McSorley.

MR. MC SORLEY: Your Honor, I would like to

reply to some of Mr. Palmer’s remarks.

The Government in this case, because we had

filed previously a very lengthy allocution, felt no need

App. 34

to supplement it with any extended pleadings. Con-

sequently we filed only a two-page document with our

sentencing recommendation that the Court impose

consecutive sentences, on the basis of his factual pleas

of guilty to two counts of using a telephone to

facilitate a violation of the Controlled Substances Act.

In short, we have asked Your Honor to impose

sentences of 16 to 48 months on each count, consecu-

tively, which would mean, of course, a total of 30 to

96 months. Because the defendant has already served

21 months in prison, and would get credit for time

served, the net result, if the Court were to accept our

recommendation, would be that the defendant, if he

goes back to a federal institution, would have to serve

11 months from today, generally speaking, before he

becomes parole eligible.

This sentence that we’re asking for is much less

[12] severe than the one the Court imposed on him two

years ago when it meted out a sentence of four years to

15 years. There the minimum time he would have had

to serve was 48 months. In the instant case if the Court

were to adopt our recommendation because of the time

served it would be 11. So it would come out to be

practically 16 months less time that he would end up

serving if the sentence of two years ago were to be

compared with the sentence we ask the Court to

impose today.

Your Honor, Mr. Palmer has more or less found

that the Government, by asking for consecutive sen-

tences, is going against a rule of general usage, of

customary practice in this courthouse. To some extent

that is correct, because generally speaking in the pleas

that I have handled in cases like this over the years, |

haven’t always been as harsh in asking for a particular

Pe ee

App. 35

sentence as | am in this case, and I would like to

explain why the Government has taken this reason, so

as not to appear as a Simon Legree.

Many, many months ago when this case first

began and we had no idea of the identity of who it was

who was using that green Jaguar automobile to ferry

narcotics about the city, we subpoenaed the owner in,

and that turned out to be Cecelia Payne, Mr. Roberts’

girlfriend. She came in and she confirmed in fact that

she was the owner, and the only person she ever let

‘drive that car was her boyfriend, whose name was

Winfield, and she told us as a matter of fact he was stand-

ing right outside [13] my office in the corridor waiting

for her.

I dispatched an officer to ask him to come in.

Right then and there, not knowing the full import of

the case, not knowing how deeply he was involved, the

Government made an offer to solicit his cooperation in

the case, because at that time we thought that Charles

“Boo” Thornton, whom we did know, was a much

more major figure in narcotics trafficking in this city

than was Mr. Roberts. As events later transpired we

were shown to be wrong, but we didn’t know that at

the time.

We solicited Mr. Roberts’ cooperation to testify

in the Grand Jury and at trial against Mr. Thornton. We

promised him that the nature and extent of his

cooperation would be made known. Suffice it to say

what we offered him was a plea bargain on a silver

platter, from which he would have emerged perhaps

with some jail time, but with certainly a plea offer to a

much less serious offense than what has ultimately

transpired in the case.

App. 36

Thereafter he began to cooperate, as Mr. Palmer

noted. He told us what the terms “street” and “half

street’ meant. He told us how he delivered drugs in his

girlfriend’s Jaguar to Mr. Thornton. He told us a

number of things which incriminated him. But when we

asked him to go a step further and identify the person

or persons from whom he was getting the drugs, and

the location, and to lay out the conspiracy and identify

other co-conspirators who were involved with them, [14]

he balked.

At that point, despite repeated entreaties to

secure his cooperation to go that extra step, he

adamantly refused. And of course what resulted was an

indictment charging him with conspiracy, and only five

telephone counts, though there were a maximum of 13

calls we could have indicted him for.

Throughout the long process that has occurred

from June of 1975 when he first came into my office,

up to today, he still has refused to cooperate.

So as we stand here today, as a prosecutor I am

not in a position as I would be in many cases, in

dealing with defendants like Mr. Roberts, and cases like

this involving drugs, to come to the Court, and say,

Your Honor, we would ask you to take into account

some extenuating and mitigating circumstances, that the

defendant has cooperated by providing us with certain

information. He has stonewalled it.

So we find it somewhat ironic for counsel to

plead on Mr. Roberts’ behalf, and to ask for probation,

when a defendant over a course of many, many years,

knowing what he faces, and knowing that we desired

the information, still refuses to disclose it.

Mr. Roberts is 33 years old. He did this, from

Baie

Se

ee

App. 37

what we’re able to discern, that is deliver drugs on call

in a Jaguar automobile, worth many thousands of

dollars and titled in his girlfriend’s name, for only one

interest, avarice, greed, [15] money.

When this case arose way back in 1975 and the

end of 1974, he was unmarried, had no children to

support, no house payments to make, he lived with his

girlfriend. The lease was in her name, the car was in

her name. He had been unemployed for many years

prior to 1975. He had been unemployed for many years

since he had gotten out of Lorton. And yet, Your

Honor, the life style that he was leading, the place

where he was living, the car he was driving, the clothes

he was wearing, the fact th t he was going to Federal

City College as a student, these things, Your Honor,

instead of being taken into account as extenuating and

mitigating circumstances, we think are appropriately to

be considered as circumstances enhancing the serious-

ness of the offense and seriousness of the offender. It is

not a defendant coming before the Court like Valjean

in the Victor Hugo novel Les Miserables, where he stole

bread because he had to eat. He did that for that

reason. When Mr. Roberts had an Opportunity to get a

deal on very good circumstances, he threw it up in our

face. |

More than that, Your Honor, he is not a novice

offender, he is not a neophyte. In 1968 in. this

courthourse he was charged in a 15 count indictment

with multiple counts of bank robbery, and he went to

trial and was convicted of all the counts which were

preferred against him: UUV, one count: federal bank rob-

bery, five counts; local bank robbery, [16] five counts.

And he was sentenced to one to five years on the UUV,

App. 38

and five to 15 on the bank robbery charges. And as the

Court has heard, he served five and a half years at

Lorton, and then he gets out.

Does he lead a law abiding life then? Is there

anything today to make the Court or anyone else come

to a reasonable conclusion that this man, with this

background, is more likely to be law abiding from

today forward than he was when he got out of Lorton

five and a half years ago?

Your Honor, when you take into account the

seriousness of this offense, and we do regard it as a

serious offense, where he delivered heroin on call,

where he himself was not an addict, where he had been

unemployed, where he was a young, strong, employ-

able, healthy human being, where he refused to assist

the Government and thereby brought down on his head

charges much more severe than would have been

brought down, it’s the Government’s feeling that the

appropriate sentence in this case is as we suggested.

Assuming the Court were to impose what we’re

asking, it is far less severe than what the Court imposed

two years ago, and there have been, to counsel’s way of

thinking, no changed circumstances to support Mr.

Palmer’s recommendation for probation. We think that

our recommendation, taking into account the offense,

the Government efforts to have him cooperate, the lack

of extenuating and mitigating circumstances, [17] is an

appropriate one, and therefore we would ask the Court

to impose it.

THE COURT: Do you want to make a response,

Mr. Palmer?

MR. PALMER: Yes, sir. The Government, it

seems to me, is pretty well agreed that Mr. Roberts was

App. 39

essentially an errand boy in the matter, and they are

really mad at him because—

THE COURT: I don’t think they say that at all.

MR. PALMER: Well, insofar as the evidence is

concerned, they have him delivering to Mr. Thornton

drugs on three occasions, $100, $50, whatever, street,

half street, that’s the evidence. And the Government is

indicating that they are mad at Mr. Roberts’, they are

seeking to get all this time because he didn’t cooperate

with them, and apparently that’s what they wanted. He

didn’t do it, therefore he deserves to get the brunt of

the time in this case, even though the target in the

investigation, Mr. Thornton, got probation. And they

are saying essentially, it seems, well, we’ve got this

fellow, so let’s get what we can from him. I think that’s

the thrust of the Government’s argument.

Now, on the other point, the Government came

and talked about the first sentence that Your Honor

imposed. That was one of the very reasons we had filed

these recusal motions, because it is difficult, as the Sec-

ond Circuit said, for a judge [18] once to have sentenced

somebody, which we did cite the Maynard case which

Your Honor did change that, but the Second Circuit

Chief Judge Kaufman said once the judge has sentenced

somebody it is tough to get it out of their mind and

change the structure. Here we have a different type of

plea.

The Government is arguing to Your Honor that

very thing that we sought to avoid. They are saying

Your Honor did this before, you gave him this amount

of time, and now looking in this context it will be

different, but have that firmly in your mind. So they

are impressing Your Honor with the very point we

App. 40

sought to avoid. And I am sure, Your Honor, or I hope

Your Honor will avoid that very argument, which is the

basis of the recusal motion, not to be trapped into

something Your Honor did before and bound by it,

because the circumstances have changed now. Mr.

Roberts is in a changed position, and I'll tell you why.

Mr. McSorley says things haven’t changed. I think they

have changed dramatically, in the sense that as I

indicated we are not here on behalf of a suppliant

saying, Your Honor, give this man another break,

maybe he has committed another offense and has done

wrong, but put him on probation. This man_ has

actually served almost two years in a federal peni-

tentiary. Atlanta is a maximum security prison. And I

think in these circumstances he is really, to me, very

frightened, and hasn’t been going out at night, is

seeking to straighten up his life. | think to send him

back now [19] would do more harm than good.

If he does mess up Mr. Coonor and us will be

back here, and Your Honor can impose what you want

to, and I think under the circumstances, under all the

facts in this case, looking at the broad view, we don’t

think we’re being unreasonable.

Thank you.

THE COURT: Mr. Roberts, we have considered

your case very carefully. We have noted again you were

on parole from a bank robbery conviction, which you

have had prior involvement with the law. In this case

you were clearly a dealer, but you had an opportunity

and failed to cooperate with the Government. Accord-

ingly, it is the judgment of the Court that on each of

these two counts you be sentenced to a term of one to

four years, that those counts be consecutive, and in

App. 41

addition that there shall be a three-year term of speciai

parole. We are not imposing a fine.

Thank you.

MR. PLAMER: Can I ask you this, Your

Honor?

THE COURT: What’s that?

MR. PALMER: So the term is two to eight that

you have imposed, I believe.

THE COURT: What’s that?

MR. PALMER: One to four and one to four,

consecutive, you said.

[20] THE COURT: That’s right. But a single one to

three special parole term, and no fine.

MR. PALMER: Now, Your Honor, if we’re

correct in our proposition that a concurrent sentence is

proper as a matter of law, he would be eligible for

parole now.

THE COURT: Yes. And under my sentence he

will be eligible for parole next December.

MR. PALMER: Well, would Your Honor con-

sider, while the issue is being decided, setting an appeal

bond, because if we’re right—

THE COURT: No. If you’re right it merely

means he would be eligible for parole. He may also

have proceedings regarding a parole violation, and

nothing has been pursued on it, for what reason I don’t

know. So Mr. Roberts is eligible for parole in this

particular case, under a different sentence, but it

doesn’t conclude the matter as to what the Parole

Board will do in connection with his violation, which

they have not noticed for hearing yet.

MR. PALMER: What I’m saying, I’m just look-

ing at this case. though. If we are correct, then he

App. 42

would be eligible now for parole.

THE COURT: | am not going to set a bond.

Thank you, Mr. Palmer. .

(Whereupon, hearing in the above-entitled mat-

ter was concluded at 10:00 o:clock a.m.)

[CAPTION OMITTED IN PRINTING]

STATEMENT OF REASONS FOR DENIAL

OF BOND PENDING APPEAL

Pursuant to Rule 9(b),. Federal Rules of Appellate

Procedure, this Statement of Reasons is entered in

conjunction with the Court’s denial of defendant’s

motion for bond pending appeal.

On March 20, 1978, defendant Roberts entered a

factual plea of guilty to two counts of unlawful use of

the telephone to further the distribution of heroin, 21

U.S.C. §843(b). The plea came after the denial of

defendant’s motions to suppress identification testi-

mony and to recuse. On April 21, 1978, Defendant was

sentenced on each count to a term of from one to four

years, and a special parole term of three years, the

sentences to run consecutively and to be served in a

federal institution. In its allocution filed before sen-

tencing, the Government urged the imposition of the

maximum penalty on the basis of defendant’s prior

criminal record and his culpability as supplier of an

extensive heroin distribution network. Defendant’s prior

criminal record as an adult is as follows:

App. 43

6/29/62 Petit Larceny ISS, probation |

Washington, D.C. year

6/13/65 Drunk, Disorderly,

Washington, D.C. Housebreaking, All nolle prossed

Petit Larceny

11/22/66 Robbery—Hold- Count 1: 1-5 years

up (Bank) Counts 2 to 12:

5-15 Years, all

counts concurrent,

Judge Matthews.

2/6/70 original sen-

tence set aside at

the direction of

Court of Appeals,

Original sentence

reimposed, but

Count 2 dismissed.

At the time of sentence, defendant was on parole until

1983 for the bank robbery conviction.

The evidence of his culpability in the heroin distri-

bution ring is equally persuasive. It consists primarily of

transcripts of telephone conversations intercepted be-

tween defendant Roberts and Charles “Boo” Thornton,

a codefendant herein who has pleaded guilty to one

count of violating 21 U.S.C. §843(b). On the basis of

these conversations, the Government concluded that

defendant Roberts acted as a “supplier-wholesaler” for

heroin to be transferred to Thornton, and through him

to the “street pushers” who make the individual sales,

and so charged. Defendant Roberts previously declined

to testify against his codefendant Thornton and, despite

his plea of guilty, continues to refuse to identify his

own sources of supply for heroin.

On the basis of the foregoing factors, the Court has

concluded that defendant’s prior record, together with

App. 44

the circumstances of this case, establish “reason to

believe that no one or more conditions of release will

reasonably assure that the [defendant] will not flee or

pose a danger to any other person or to the com-

munity.” 18 U.S.C. §3148. The danger to the com-

munity posed by defendant is that he might resume the

narcotics distribution activity with which he was

charged in five counts, two of which were the subject

of his plea of guilty.* In the language of the pertinent

appellate rule, the defendant has not met “(t]he

burden of establishing that [he] will not flee or pose a

danger to any other person or to the community.” Fed.

R. App. P. 9(c).

JOHN H. PRATT

United States District Judge

June 16, 1978

*See Hansford v. United States, 353 F.2d 858, 860, 122 US.

App. D.C. 320, 322 (1965) (per curiam) (every narcotics

trafficker a “danger to society”).

App. 45

NOTATION AS TO WHERE THE RELEVANT

OPINIONS AND JUDGMENTS BELOW

MAY BE FOUND

1. Judgment of affirmance; Petition For a Writ of

Certiorari, Appendix A. (hereinafter Pet. App.) la-2a

2. Amended judgment; Pet. App. 2a

3. Denial of suggestion for rehearing en banc, with

separate statements of two judges; Pet. App. 3a-23a.