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Dyess Dissent: Rampant Misconduct, Apprendi Warrant Resentencing

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By William Peacock, Esq. on September 19, 2013 4:40 PM

Yesterday, we brought you the case of Calvin "Calcutta" Dyess, a former drug kingpin serving a life sentence after pleading guilty and getting a questionably-high sentence.

It wasn't the severity of the sentence that gave us pause, however. It was the entire process, from the investigating officer carrying on an affair with Dyess' wife (the officer and Dyess' wife were later married and divorced), coaching her testimony and suborning perjury, and procedurally, there were Apprendi (facts increasing the sentence must be alleged in the indictment) problems glossed over by the majority opinion, which upheld his life sentence.

The dissent labels this a "life sentence under troubling circumstances," which it "cannot condone."

Apprendi Ignored, Not Rejected

When Dyess last reached the Fourth Circuit, (primarily addressing the "cop sleeping with my wife" issues), he made an Apprendi claim in his filing, which was subsequently ignored by the court, which instead analyzed his case under an Apprendi-offspring, United States v. Booker.

The majority says that the argument was denied sub silentio, but even if it wasn't addressed properly, Dyess' argument fails plain error analysis (which is used because he didn't bring up Apprendi until after remand).

The dissent notes that the court's failure to address Apprendi was especially odd considering the trial judge, who passed away during the remand proceedings, had previously recognized that Apprendi applied, and that the indictment's silence on drug quantities would limit the sentence to twenty years upon resentencing.

Because the remand "thrust the case back into a pre-sentencing posture," the dissent also argues that the prior Apprendi argument was timely, and therefore, a harmless error standard should apply. Because of the indictment's inadequacy, the dissent agrees with the late trial judge's assessment: the sentence should've been capped at 20 years.

Pervasive Misconduct and Plain Error

Even if plain error applies, the majority's assertion that Cotton controls (because the evidence of drug quantities was "overwhelming" and "essentially uncontroverted") is incorrect, argues the dissent. Judge Gregory then recounts a list of misconduct so widespread that pervasive barely covers it.

The abusive investigating officer was sleeping with the defendant's wife, preparing her trial exhibits (demonstrating drug quantities), coaching her testimony, and suborning perjury by instructing her to testify that she created the exhibits. That officer took the Fifth on remand, and for some reason, was not offered immunity from prosecution (to take the Fifth out of the equation), leaving the full extent of his misconduct unknown.

The late trial judge, Judge Haden, assessed the state of the case, noting that,

"This case presents questions of ethical conduct and the appearance of impropriety ... unprecedented in this Court's experience. The lead AUSA who prosecuted this case also managed case agents and witnesses who allegedly (and by their own admissions) stole drug proceeds, suborned perjury, lied under oath, and tampered with witnesses."

In short, you have rampant misconduct and perjury, an officer who was not a gentleman, and plenty of reasons why the evidence of drug quantities was neither "overwhelming," nor "essentially uncontroverted." Even under a plain error analysis, Apprendi demands a remand, resentencing, and a twenty-year maximum sentence.

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