UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 05-4647
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH WAYNE FORD, JR., Defendant - Appellant.
No. 06-4388
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH WAYNE FORD, JR., Defendant - Appellant.
Appeals from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:05-cr-00098-PJM; 8:05-cr-00235-PJM)
Submitted:
June 26, 2008
Decided:
August 4, 2008
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Spencer M. Hecht, Silver Spring, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, David I. Salem, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: In
these
consolidated
appeals,
Kenneth
Wayne
Ford
challenges the district court’s order dismissing the indictment against him without prejudice, pursuant to the Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (2000) (Appeal No. 05-4647), and
his
subsequent
unauthorized
conviction
possession
of
and
national
72-month defense
sentence
for
information,
in
violation of 18 U.S.C. § 793(e) (2000), and making a material false statement to a government agency, in violation of 18 U.S.C. § 1001 (2000) (Appeal No. 06-4388).
We affirm.
(I) Espionage Act conviction Ford argues that § 793(e) does not criminalize the retention, without transmittal, of classified material, despite the plain meaning of the statute’s language, because this language contravenes the intent expressed in its legislative history.
Ford
contends that the legislative history of § 793(e) does not reveal an
intent
to
criminalize
retention,
without
transmittal,
of
classified material, and that the absence of a lesser statutory maximum punishment for retention alone indicates that retention without transmittal does not violate the statute. We review issues of statutory construction de novo. United States v. Childress, 104 F.3d 47, 50 (4th Cir. 1996). Statutory language should be given its ordinary meaning “unless there is ambiguity or unless the statute as literally read would
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contravene the unambiguously expressed legislative intent gleaned from the statute’s legislative history.”
United States v. Sheek,
990 F.2d 150, 152-53 (4th Cir. 1993) (citations omitted). Criminal statutes
“are
to
be
strictly
construed
and
should
not
be
interpreted to extend criminal liability beyond that which Congress has plainly and unmistakably proscribed.” and internal quotes omitted).
Id. at 153 (citations
Criminal liability may not be based
upon a statutory construction that would be unforeseeable to the accused, and “ambiguities in criminal statutes must be resolved in favor of lenity for the accused.”
Id.
Section 793(e) reads: Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . . [s]hall be fined under this title or imprisoned not more than ten years, or both. 18 U.S.C. § 793(e), (f) (emphasis added).
Ford concedes that the
plain language of § 793(e) criminalizes the unauthorized possession and retention of classified information.
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We addressed the plain meaning and legislative history of sections 793(d) and (e) in United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
The defendant in Morison appealed from his
convictions for unauthorized transmittal of classified information, in violation of § 793(d), and retention of classified information of which he had unauthorized possession, in violation of § 793(e), as well as theft of government records, in violation of 18 U.S.C.A. § 641 (West 2000 & Supp. 2008).
Id. at 1060.
Morison argued he
should not have been convicted under §§ 793(d) and (e) because his conduct involved transmittal of classified information to the press, rather than to agents of a foreign government, and thus did not fall within the scope of “classical spying” that Congress intended to criminalize under the Espionage Act.
Id. at 1063.
In rejecting Morison’s argument, we stated, “[i]t is difficult to conceive of any language more definite and clear” than §
793(d)’s
information
prohibition to
any
against
unauthorized
transmittal recipients
of and
classified §
793(e)’s
prohibition against retention of classified information pursuant to unauthorized possession.
Id.
We held that the plain meaning of
§§ 793(d) and (e), as applied in Morison’s case, did not present any exceptional circumstance that would justify departing from literal statutory construction based upon the statute’s legislative history.
Id. at 1064.
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We were “convinced . . . that the legislative history [did] not support the defendant’s construction of sections 793(d) and (e).” the
Id.
Espionage
We primarily considered the legislative history of Act
of
1917,
which
included
§
793(d)
but
not
§ 793(e), added in the 1950 revision, but noted that “the same general considerations will apply to (e) since it was intended to Id. at 1065 n.9.
supplement (d) by criminalizing retention.” concluded
that
“[i]t
seems
abundantly
clear
from
We
[their]
legislative history that sections 793(d) and (e) were not intended to be restricted in application to classic spying but were intended to criminalize the disclosure to anyone not entitled to receive it.”
Id. at 1066 (internal quotes omitted). The
legislative
history
of
§
793(e)
shows
no
Congressional intent to criminalize transmittal, but not retention, of classified information by unauthorized possessors.
On the
contrary, the Senate Report preceding the statute’s enactment states: Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by the person entitled to receive them. The dangers surrounding the unauthorized possession of the items enumerated in this statute are self-evident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand. S. Rep. No. 80-427, at 7 (1949).
Ford identifies no portion of the
legislative history that contradicts the Senate Report’s indication
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that Congress intended to criminalize unauthorized possession and retention of classified information, within the plain meaning of § 793(e).
We reject Ford’s argument that Congress’ failure to
provide a lesser maximum statutory penalty than that provided for transmittal evidences its intent not to criminalize retention.
As
discussed further below, the statute provides only a maximum penalty, not a minimum, and the specifics of the offense conduct may properly be addressed at the sentencing phase, as they were in this case.
Accordingly, we hold that the district court did not
err in convicting Ford under § 793(e) for retention of classified information that he was not authorized to possess. (II) Speedy Trial Act Ford presents two arguments under the Speedy Trial Act. First, he asserts that the district court erred in its computation of excludable time between his arrest and the filing of the indictment.
He contends that he was presented with a criminal
complaint on January 12, 2004, but was not indicted until March 7, 2005, and that the Government’s delay was not based upon any recognized exception to the Speedy Trial Act’s 30-day rule.
He
argues that the district court erred in finding excludable as “plea negotiations” the portion of the delay during which the Government sought security clearances for Ford’s attorneys and authorization from
the
Department
of
Justice
prosecution.
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(“DOJ”)
to
proceed
with
the
The Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161 - 3174 (2000), requires that an indictment be filed within thirty days of the defendant’s arrest.
18 U.S.C. § 3161(b) (2000).
Certain delays “resulting from other proceedings concerning the defendant” are excludable when computing the time within which a defendant must be indicted.
18 U.S.C. § 3161(h).
Specifically,
delays resulting from plea negotiations, and pretrial motions, from the time of their filing through their disposition, are excludable. 18 U.S.C. § 3161(h)(1)(F); see United States v. Bowers, 834 F.2d 607, 610 (6th Cir. 1987); United States v. Montoya, 827 F.2d 143, 150 (7th Cir. 1987).
A defendant may not prospectively waive his
statutory right to a speedy trial. U.S. 489, 500-03 (2006).
Zedner v. United States, 547
We review de novo a district court’s
interpretation of the Speedy Trial Act, and review the court’s related factual findings for clear error.
United States v. Bush,
404 F.3d 263, 272 (4th Cir. 2005). Here, the Government presented its criminal complaint against Ford to the district court on January 12, 2004, but did not initially indict him until March 7, 2005 - 419 days later. concedes
that
sixty-five
days
were
properly
excluded
Ford for
disposition of his pretrial motions, but contends that the district court should have excluded only eighteen days for plea negotiations and other proceedings.
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We hold that the district court did not err, as a matter of law, by excluding as time spent on plea negotiations the time necessary for Ford’s attorneys to obtain security clearances. Although Ford’s January 22, 2004, letter indicating that he wished to discuss resolution of the charges against him did not waive his rights under the Speedy Trial Act, the district court did not clearly err in finding that the letter expressed Ford’s intent to pursue plea negotiations, and that obtaining security clearances for Ford’s attorneys was a necessary prerequisite to conducting the negotiations. Ford could not reasonably have expected his attorney to advise him concerning the Government’s plea offer without having reviewed the evidence against him, which first required obtaining a security clearance. Despite the district court’s proper exclusion of these periods, the court found that a violation of the Act occurred, and dismissed the indictment without prejudice. Ford’s second argument is that the district court erred in failing to dismiss with prejudice.
We review a district court’s decision to dismiss an
indictment for noncompliance with the Speedy Trial Act with or without prejudice for abuse of discretion. United States v. Jones, 887 F.2d 492, 494 (4th Cir. 1989).
Neither type of dismissal is
“the presumptive remedy for a Speedy Trial Act violation.” States v. Taylor, 487 U.S. 326, 334 (1988).
United
Section 3162(a)(1)
lists the specific factors that a court must consider when deciding
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whether to dismiss a case with or without prejudice due to a Speedy Trial violation: “the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice.”
“[A] district court must
carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review.” 336.
Taylor, 487 U.S. at
The Supreme Court has held that “the presence or absence of
prejudice to the defendant” is also “relevant for a district court’s consideration.” Id. at 334. “[W]hen the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court’s judgment of how opposing considerations balance should not lightly be disturbed.” 337.
Id. at
However, when a district court “has ignored or slighted a
factor that Congress has deemed pertinent to the choice of remedy,” it has abused its discretion under the limits of the Speedy Trial Act.
Id. Here,
offense
the
district
was
serious,
and
seriousness,
although
Ford
court
that
the
disputes
found
that
parties this
Ford’s
had
alleged
conceded
finding
on
its
appeal.
Regarding the prejudice to Ford from the delay, the court found “that it has been problematic and difficult for the defendant in terms of his seeking and maintaining employment.”
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The court found
the
facts
and
circumstances
leading
to
dismissal
to
be
the
dispositive factor, because the Government exceeded the statutory thirty-day
limit
by
“only
a
few
days”
arguments for exclusion of further time. not
specifically
address
the
impact
of
based
upon
plausible
The district court did reprosecution
on
the
administration of the Speedy Trial Act and the administration of justice. We
find
that
the
district
court
did
not
abuse
discretion in dismissing the indictment without prejudice. statutory factors support the district court’s decision.
its The
Ford’s
alleged offense conduct constituted a serious violation of the Espionage Act.
The facts and circumstances leading to dismissal
consisted of the Government’s delay in indicting Ford for over a month beyond the statutory limit while it sought approval for prosecution from the DOJ.
Although the amount of time by which the
Government exceeded the statutory limit was modestly greater than the district court acknowledged, the Government had an arguable basis for its belief that the time during which it sought DOJ approval was excludable.
Furthermore, the periods that were
excluded by the district court resulted from the need for Ford’s attorneys to get security clearances and from their scheduling conflicts,
rather
than
from
any
Government.
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affirmative
delay
by
the
The final factor is the impact of reprosecution on the administration of the Speedy Trial Act and the administration of justice.
While reprosecution might harm the administration of the
Speedy Trial Act by failing to adequately penalize the Government for
its
delay
in
bringing
the
indictment,
it
favors
the
administration of justice by ensuring that Ford does not escape prosecution for a serious offense.
Finally, although Ford was
prejudiced by the delay because he was unable to work in his field of
expertise
while
the
charges
were
pending,
he
may
have
permanently lost any chance of working in that field as a result of the charges and the circumstances surrounding them.
Accordingly,
on balance, the statutory factors support the district court’s decision to dismiss the indictment without prejudice; the court, therefore, did not abuse its discretion. (III) Sentence Ford argues that the district court committed three errors in sentencing him to 72 months’ imprisonment on Count 1 and 36
months’
concurrent
imprisonment
on
Count
2.
First,
Ford
contends that the district court erred in enhancing his offense level by two levels for abuse of public trust, based upon U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3B1.3 (2005).
He
argues that his conduct does not justify this enhancement and that the offense characteristics of § 793(e) already incorporate an abuse of trust enhancement.
Second, Ford argues that his 72-month
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sentence for Count 1 is substantively unreasonable because the district court overemphasized the nature and seriousness of his offense conduct and created an unwarranted sentencing disparity between Ford and similarly-situated defendants. Third, Ford argues that his 36-month sentence for Count 2 is unreasonable because the district court incorrectly calculated the Guidelines range for Count 2 and sentenced Ford above the correct Guidelines range without stating any reasons for the alleged variance. A. Abuse of Public Trust Enhancement Following United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process at sentencing. First, it must calculate the appropriate advisory Guidelines range. It must then consider the resulting range in conjunction with the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), and determine an appropriate sentence.
United States v.
Davenport, 445 F.3d 366, 370 (4th Cir. 2006)(overruled in part on other grounds by Irizarry v. United States, 128 S. Ct. 2198, 2201-02 (2008). The appellate court reviews the sentence for abuse of discretion.
Gall v. United States, 128 S. Ct. 586, 597 (2007).
The appellate court must first ensure that the district court committed no procedural error, such as “failing to calculate (or improperly
calculating)
the
Guidelines
range,
treating
the
Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
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to adequately explain the chosen sentence--including an explanation for any deviation from the Guidelines range.”
Id.
We review de novo a district court’s legal interpretation of whether a defendant abused a position of trust under U.S.S.G. § 3B1.3, and review its factual findings for clear error.
United
States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005).
Section
3B1.3 provides: If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. This adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic. An adjustment under § 3B1.3 is warranted “if the district court determines that [the defendant] abused a position of trust and that abuse significantly contributed to the commission or concealment of the crime.”
Ebersole, 411 F.3d at 536 (internal quotation marks
and citations omitted). “The sometimes difficult inquiry into what constitutes a ‘position of trust’ is guided to some extent by the commentary to § 3B1.3 . . . . ”
Id.
“Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily nondiscretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the -14-
commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult). U.S.S.G. § 3B1.3 cmt. n.1. Notwithstanding Application Note 1, the adjustment applies to “[a]n employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail.”
Id. at cmt. n.2(A).
We have identified several factors that a district court should consider in determining whether a defendant held a position of trust: First, courts ask whether the defendant had special duties or “special access to information not available to other employees.” Second, the defendant’s level of supervision or “degree of managerial discretion” is relevant. Bank tellers who embezzle from their employers provide an example of a situation where there is little trust to abuse because the employees are closely supervised, and it is expected that wrongs they commit will be readily detected. Third, the analysis also entails an examination of “the acts committed to determine whether this defendant is ‘more culpable’ than others who hold similar positions and who may commit crimes.” United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (citation omitted).
“It is certainly also important to inquire into the
level of harm occasioned by the breach of trust.”
United States v.
Pitts, 176 F.3d 239, 246 (4th Cir. 1999). Here, the district court did not err in enhancing Ford’s sentence pursuant to U.S.S.G. § 3B1.3.
As an initial matter,
although the court stated that it would “revisit” the issue of the abuse of trust enhancement when it determined Ford’s sentence
-15-
pursuant to § 3553(a), the district court was required to properly calculate
the
advisory
Guidelines
range
determine Ford’s ultimate sentence.
before
moving
on
to
The district court did not
commit clear error in finding that Ford held a position of public trust.
Ford held a top secret security clearance as an employee of
the National Security Agency and he was able to remove classified documents from his office without detection by his supervisors. Ford’s actions exposed classified information to discovery by a person without a security clearance and created a potential for serious harm to our nation’s security. The district court also did not err in finding that Ford’s advisory Guidelines sentence should be enhanced because his abuse of his position of public trust contributed significantly to his commission of the offense. commit
the
offense
of
Ford simply would not have been able to
retaining
classified
documents
without
permission if he had not held a top secret security clearance as an employee of NSA. B. Reasonableness of Sentence on Count 1 In determining a reasonable sentence pursuant to § 3553(a), one of the factors the sentencing court must consider is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. . .” 18 U.S.C.A. § 3553(a)(6).
Following the Supreme Court’s decision
in Booker, “it is unquestioned that uniformity remains an important -16-
goal of sentencing.” 573 (2007).
Kimbrough v. United States, 128 S. Ct. 558,
However, the Supreme Court has “recognized that some
departures from uniformity were a necessary cost” of the advisory Guidelines remedy adopted in Booker.
Id. at 574.
The district court did not abuse its discretion in sentencing Ford to 72 months’ imprisonment, a sentence below the advisory Guidelines range of 108 to 135 months’ imprisonment.
The court
properly considered the advisory Guidelines range and the factors in § 3553(a), including the seriousness of Ford’s offense and the need to avoid the unwarranted sentencing disparity that might result from sentencing Ford, who was convicted only of retaining classified information that he was not authorized to possess, at the same level as defendants who are convicted of transmitting classified information to unauthorized recipients. C. Calculation of Guidelines Sentence on Count 2 We briefly address Ford’s other claim that the district court procedurally erred in calculating his sentence.
Pursuant to
U.S.S.G. § 3D1.4, “[t]he combined offense level is determined by taking the offense level applicable to the [Count] with the highest offense level and increasing that offense level” based upon the seriousness of the other Counts.
A Count that is nine or more
levels less serious than the Count with the highest offense level is disregarded for the purpose of computing the combined offense level, “but may provide a reason for sentencing at the higher end
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of
the
sentencing
U.S.S.G. § 3D1.4(c).
range
for
the
applicable
offense
level.”
Here, the district court correctly assigned
the offense level applicable to Count One and did not increase the combined offense level based upon Count Two.
Accordingly, the
district court did not commit a procedural error. Accordingly, we affirm the district court’s dismissal without prejudice of the original indictment against Ford, and Ford’s subsequent conviction and sentence. argument because the
facts
and
legal
We dispense with oral
contentions are adequately
presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED
-18-
FILED: August 4, 2008
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________ No. 05-4647 (L) (8:05-cr-00098-PJM) ___________________
UNITED STATES OF AMERICA, Plaintiff - Appellee v. KENNETH WAYNE FORD, Jr., Defendant - Appellant
___________________ J U D G M E N T ___________________ In accordance with the decision of this Court, the judgments of the District Court are affirmed. This judgment shall take effect upon issuance of this Court's mandate in accordance with Fed. R. App. P. 41. /s/ PATRICIA S. CONNOR, CLERK
FILED: October 6, 2008 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________ No. 05-4647 (L) (8:05-cr-00098-PJM) ___________________
UNITED STATES OF AMERICA, Plaintiff - Appellee v. KENNETH WAYNE FORD, Jr., Defendant - Appellant ___________________ O R D E R ___________________ The Court denies the petition for rehearing and rehearing en banc. No poll was requested on the petition for rehearing en banc. Entered at the direction of the panel: Judge Wilkinson, Judge Michael and Judge Traxler. For the Court /s/ Patricia S. Connor, Clerk
APPEAL,CLOSED
U.S. District Court District of Maryland (Greenbelt) CRIMINAL DOCKET FOR CASE #: 8:05−cr−00235−PJM All Defendants Case title: USA v. Ford
Date Filed: 05/23/2005 Date Terminated: 04/05/2006
Date Filed
#
04/09/2013
74 ORDER Terminating Supervision as to Kenneth Wayne Ford, Jr. Signed by Judge Peter J. Messitte on 4/8/2013. (nss, Deputy Clerk) (Entered: 04/09/2013)
07/13/2009
73 Request for Conference (Attachments: # 1 Exhibit Letter to Hecht)(Janey, Neal) (Entered: 07/13/2009)
07/13/2009
72 NOTICE OF ATTORNEY APPEARANCE: Neal M Janey, Sr as Retained Counsel appearing for Kenneth Wayne Ford, Jr (Janey, Neal) (Entered: 07/13/2009)
05/02/2007
Docket Text
Show Cause Hearing as to Kenneth Wayne Ford, Jr held on 5/2/2007 before Judge Peter J. Messitte. (Court Reporter Marshall) (esp, Deputy Clerk) (Entered: 05/02/2007)
03/26/2007
71 ORDER that the Government and appropriate representatives from the Department of Justice and/or National Security Agency "APPEAR" before the Court to SHOW CAUSE why the requested transcripts cannot be produced to Defense Counsel. The Show Cause Hearing will be on May 2, 2007 at 9:30 a.m. 68 Motion to Compel as to Kenneth Wayne Ford Jr. Signed by Judge Peter J. Messitte on 3/23/07. (krc, Deputy Clerk) (Entered: 03/27/2007)
03/16/2007
70 REPLY TO RESPONSE to Motion by Kenneth Wayne Ford, Jr re 68 MOTION to Compel Production of Remaining Transcripts for purposes of Appeal (c/s) (krc, Deputy Clerk) (Entered: 03/20/2007)
03/13/2007
69 RESPONSE to Motion by USA as to Kenneth Wayne Ford, Jr re 68 MOTION to Compel Production of Remaining Transcripts for Purposes of Appeal and Request for Hearing Replies due by 3/27/2007. (c/s)(aap, Deputy Clerk) (Entered: 03/13/2007)
02/20/2007
68 MOTION to Compel Production of Remaining Transcripts for Purposes of Appeal and Request for Hearing by Kenneth Wayne Ford, Jr. Responses due by 3/9/2007 (c/s)(krc, Deputy Clerk) (Entered: 02/21/2007)
09/22/2006
67 TRANSCRIPT of Proceedings as to Kenneth Wayne Ford, Jr held on November 30, 2005 before Judge Peter J. Messitte. Court Reporter: Sharon O'Neill. (rank, Deputy Clerk) (Entered: 09/25/2006)
09/20/2006
66 TRANSCRIPTS (3) of Proceedings as to Kenneth Wayne Ford, Jr held on Novermber 29, 30 and December 14, 2005 before Judge Peter J. Messitte. Court Reporter: O'Neill. (filed separately) (lad3, Deputy Clerk) (Entered: 09/25/2006)
09/20/2006
65 TRANSCRIPTS(8) of Proceedings as to Kenneth Wayne Ford, Jr held on December 1, 2, 6, 8, 13, 15, 2005, March 1, 30, 2006 before Judge Peter J. Messitte. Court Reporter: Sharon O'Neill. (Filed Separately) (aap, Deputy Clerk) (Entered: 09/20/2006)
08/25/2006
64 TRANSCRIPT of Proceedings as to Kenneth Wayne Ford, Jr held on December 7, 2005 before Judge Peter J. Messitte. Court Reporter: Linda C. Marshall (FILED SEPARATELY (zf, Deputy Clerk) (Entered: 08/25/2006)
08/07/2006
63 ORDER of USCA "EXTENDING" the time for court reporter, Sharon O'Neill to file the transcript, without sanction to 9/8/06 as to Kenneth Wayne Ford, Jr re 58 Notice of Appeal − Final Judgment (c/s)(krc, Deputy Clerk) (Entered: 08/07/2006)
07/28/2006
62 ORDER of USCA "EXTENDING" the time for court reporter, Sharon O'Neill to file the transcript, without sanction to 8/7/06 as to Kenneth Wayne Ford, Jr re 58 Notice of Appeal − Final Judgment (c/s) (krc, Deputy Clerk) (Entered: 07/28/2006)
07/28/2006
61 ORDER of USCA "EXTENDING" the time for court reporter, Linda Marshall to file the transcript, without sanction to 8/28/06 as to Kenneth Wayne Ford, Jr re 58 Notice of Appeal − Final Judgment (c/s) (krc, Deputy Clerk) (Entered: 07/28/2006)
06/14/2006
60 ORDER of USCA "EXTENDING" the time for court reporter, Sharon O'Neill to file the transcript, without sanction to 7/26/06 as to Kenneth Wayne Ford, Jr re 58 Notice of Appeal − Final Judgment (c/s) (krc, Deputy Clerk) (Entered: 06/16/2006)
04/20/2006
59 ORDER of USCA "CONSOLIDATING" 05−098(L) and 05−0235 for purposes of briefing and oral argument as to Kenneth Wayne Ford, Jr re 58 Notice of Appeal − Final Judgment (c/s) (krc, Deputy Clerk) (Entered: 04/20/2006)
04/20/2006
USCA Case Number as to Kenneth Wayne Ford, Jr 06−4388 for 58 Notice of Appeal − Final Judgment filed by Kenneth Wayne Ford, Jr. (Case Manager − Michael Radday) (krc, Deputy Clerk) (Entered: 04/20/2006)
04/07/2006
Transmission of Notice of Appeal and Docket Sheet as to Kenneth Wayne Ford, Jr to US Court of Appeals re 58 Notice of Appeal − Final Judgment (krc, Deputy Clerk) (Entered: 04/07/2006)
04/07/2006
58 NOTICE OF APPEAL by Kenneth Wayne Ford, Jr Filing fee $ 255.00, (receipt number 84637004983) (c/s) (krc, Deputy Clerk) (Entered: 04/07/2006)
04/05/2006
57 JUDGMENT as to Kenneth Wayne Ford, Jr. : 72 Months Imprisonment as to Count 1 of the Superseding Indictment, 36 Months Imprisonment as to Count 2 of the Superseding Indictment to run concurrent to Count 1 of the Superseding Indictment; 3 Years Supervised Release as to Count 1, 3 Years Supervised Release as to Count 2 to run concurrent to Count 1 with Conditions; $200.00 Special Assessment; Original Indictment is dismissed. Signed by Judge Peter J. Messitte on 4/4/06 (cc/m 4/5/06 esp) (zf, Deputy Clerk) (Entered: 04/05/2006)
03/30/2006
Oral Motion of defendant Kenneth Ford for release pending appeal − argued − "denied" for reasons stated on the record in open court.(Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 03/30/2006)
03/30/2006
Sentencing Hearing as to Kenneth Wayne Ford, Jr held on 3/30/2006 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 03/30/2006)
03/29/2006
56 RESPONSE to Government's Letter Dated March 24, 2006 and Supplemental Memorandum In Support of Sentencing by Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 03/29/2006)
03/24/2006
55 Supplement and exhibits A−D by USA re 54 SENTENCING MEMORANDUM as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 03/27/2006)
03/01/2006
Sentencing continued until March 30, 2006 @10:30 a.m.(Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 03/01/2006)
02/28/2006
54 SENTENCING MEMORANDUM and Exhibits A−C by USA as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 03/01/2006)
02/24/2006
53 SENTENCING MEMORANDUM by Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 02/27/2006)
12/15/2005
52 EXHIBIT LIST by Kenneth Wayne Ford, Jr.(esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
51 EXHIBIT LIST by USA as to Kenneth Wayne Ford, Jr. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
50 Stipulation re: Certification of Exhibits Submitted to the Jury. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
49 Stipulation re: Return of Exhibits to Counsel. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
48 Guideline Sentencing Order as to Kenneth Wayne Ford, Jr. Signed by Judge Peter J. Messitte on 12/15/2005. (c/m 12/15/2005 esp) (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
47 Verdict form and answers thereto as to defendant Kenneth Ford, Jr. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
Jury polled at the direction of the court as to defendant Kenneth Ford, Jr. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/15/2005
JURY VERDICT as to Kenneth Wayne Ford Jr. (1) Guilty on Count 1s,2s. (Reporter: O'Neill)(esp, Deputy Clerk) (Entered: 12/15/2005)
12/14/2005
Verdict form submitted to the jury for their deliberations. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/14/2005
CSO sworn: David Williams. (esp, Deputy Clerk) (Entered: 12/15/2005)
12/14/2005
Closing statements of counsel. (esp, Deputy Clerk) (Entered: 12/14/2005)
12/14/2005
Court's charge to the jury. (esp, Deputy Clerk) (Entered: 12/14/2005)
12/14/2005
Out of the presence of the jury − Oral Motion of defendant Kenneth W. Ford, Jr. for Judgment of Acquittal made at the conclusion of all the evidence − argued − "denied" for reasons stated on the record in open court. (esp, Deputy Clerk) (Entered: 12/14/2005)
12/14/2005
Jury Trial − Day 9 as to Kenneth Wayne Ford, Jr held on 12/14/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/14/2005)
12/14/2005
Oral Motion of defendant Kenneth W. Ford, Jr. for Judgment of Acquittal as to Aiding and Abetting as to Counts 1s and 2s − argued − "granted" for reasons stated on the record in open court.(Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 12/14/2005)
12/14/2005
Charging conference held in open court on the record.(Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 12/14/2005)
12/13/2005
Jury Trial − Day 8 as to Kenneth Wayne Ford, Jr. held on 12/13/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/13/2005)
12/13/2005
Hearing held out of the presence of the jury before Messitte, J. re: Motion Hearing as to Kenneth Wayne Ford, Jr held on 12/13/2005 re 46 MOTION in Limine filed by USA − argued − "granted" for reasons stated on the record in open court. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/13/2005)
12/12/2005
46 MOTION in Limine to Exclude Hearsay Statement Allegedly Made to Defendant and to Limit Inpeachment of Tonya Tucker by USA and exhibit 1 as to Kenneth Wayne Ford, Jr. Responses due by 12/29/2005 (c/s)(zf, Deputy Clerk) (Entered: 12/12/2005)
12/09/2005
45 TRANSCRIPT of Proceedings as to Kenneth Wayne Ford, Jr held on December 2, 2005 before Judge Peter J. Messitte. Court Reporter: Sharon O'Neill. (filed separately) (lad3, Deputy Clerk) (Entered: 12/09/2005)
12/08/2005
44 RESPONSE in Opposition by USA as to Kenneth Wayne Ford, Jr re 43 MOTION to Admit Proffer Statement and attachments (c/s) (lad3, Deputy Clerk) (Entered: 12/09/2005)
12/08/2005
Out of the presence of the jury hearing held on Motion of defendant Kenneth Ford for Judgment of Acquittal made at the conclusion of the Government's case−in−chief − argued − "denied" for reasons stated on the record in open court. (esp, Deputy Clerk) (Entered: 12/08/2005)
12/08/2005
Jury Trial − Day 7 as to Kenneth Wayne Ford, Jr. held on 12/8/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/08/2005)
12/08/2005
Out of the presence of the jury hearing held on Motion by USA to exclude statement as to defendant Kenneth Ford taken on 10/26/04 − "granted" in part − "denied" in part for reasons stated on the record in open court. (Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 12/08/2005)
12/07/2005
Jury Trial − Day 6 as to Kenneth Wayne Ford, Jr. held on 12/7/2005 before Judge Peter J. Messitte. (Court Reporter Marshall) (esp, Deputy Clerk) (Entered: 12/08/2005)
12/07/2005
12/07/2005
Motion Hearing held before Messitte, J. as to Kenneth Wayne Ford, Jr held on 12/7/2005 re 43 MOTION to Admit Proffer Statement in Government's Case−In−Chief filed by USA − argued − "granted" for the reasons stated in open court. (Court Reporter Marshall) (esp, Deputy Clerk) (Entered: 12/07/2005) 43 MOTION to Admit Proffer Statement in Government's Case−In−Chief by USA and attachment as to Kenneth Wayne Ford, Jr. Responses due by 12/26/2005 (c/s)(zf, Deputy Clerk) (Entered: 12/07/2005)
12/06/2005
Jury Trial− Day 5 as to Kenneth Wayne Ford, Jr. held on 12/6/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/06/2005)
12/02/2005
Jury Trial − Day Four as to Kenneth Wayne Ford, Jr. held on 12/2/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/02/2005)
12/01/2005
Jury Trial − Day 3 as to Kenneth Wayne Ford, Jr held on 12/1/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 12/01/2005)
11/30/2005
42 Sealed Document (lad3, Deputy Clerk) (Entered: 12/01/2005)
11/30/2005
Jury Trial − Day 2 as to Kenneth Wayne Ford, Jr held on 11/30/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 11/30/2005)
11/29/2005
Jury Trial − Day One as to Kenneth Wayne Ford, Jr. held on 11/29/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 11/30/2005)
11/29/2005
41 SUPPLEMENTAL ORDER as to Kenneth Wayne Ford, Jr. Signed by Judge Peter J. Messitte on 11/29/05 (zf, Deputy Clerk) (Entered: 11/30/2005)
11/29/2005
Voir Dire begun on 11/29/2005 Kenneth Wayne Ford Jr. (1) on Count 1s, 2s before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 11/29/2005)
11/28/2005
Sealed hearing held before Messitte, J. on November 28, 2005.(ER: Peterson/Rosenthal) (esp, Deputy Clerk) (Entered: 11/29/2005)
11/28/2005
Plea entered by Kenneth Wayne Ford, Jr. "Not Guilty" on counts 1s, 2s. before Judge Peter J. Messitte. (ER: Peterson) (esp, Deputy Clerk) (Entered: 11/29/2005)
11/28/2005
Arraignment as to Kenneth Wayne Ford Jr. (1) Count 1s,2s held on 11/28/2005 before Judge Peter J. Messitte. (ER: Peterson) (esp, Deputy Clerk) (Entered: 11/29/2005)
11/28/2005
40 SUPERSEDING INDICTMENT as to Kenneth Wayne Ford, Jr (1) count(s) 1s, 2s (zf, Deputy Clerk) (Entered: 11/28/2005)
11/28/2005
39 MOTION Regarding Elements For Count One by USA and attachment as to Kenneth Wayne Ford, Jr. Responses due by 12/15/2005 (c/s)(zf, Deputy Clerk) (Entered: 11/28/2005)
11/28/2005
38 Proposed Jury Instructions by USA as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/28/2005)
11/23/2005
37 Voir Dire and Supplemental Jury Instruction for Beginning of Trial by USA as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/23/2005)
11/22/2005
Sealed hearing held before Messitte, J. (Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 11/23/2005)
11/21/2005
36 Second Supplemental NOTICE by the United States Under Section 6(b) of the Classified Information Procedure Act as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/21/2005)
11/21/2005
35 Government's NOTICE Under Section 6(b) of the Classified Information Procedures Act as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/21/2005)
11/21/2005
34 RESPONSE in Opposition by Kenneth Wayne Ford, Jr re 33 MOTION in Limine by USA (c/s) (zf, Deputy Clerk) (Entered: 11/21/2005)
11/17/2005
33 MOTION in Limine by USA as to Kenneth Wayne Ford, Jr. Responses due by 12/5/2005 (c/s)(zf, Deputy Clerk) (Entered: 11/17/2005)
11/15/2005
32 Proposed Voir Dire by USA as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/15/2005)
11/15/2005
31 Requested Instructions to the Jury by USA as to Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 11/15/2005)
11/04/2005
Telephone Conference as to Kenneth Wayne Ford, Jr. held on 11/4/2005 before Judge Peter J. Messitte. (esp, Deputy Clerk) (Entered: 11/07/2005)
10/31/2005
Sealed hearing held before (Messitte, J.) (Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 10/31/2005)
10/25/2005
30 ORDER that the defendant's notice pursuant to Section 5 of CIPA shall be due on or before October 17, 2005 as to Kenneth Wayne Ford, Jr. Signed by Judge Peter J. Messitte on 10/25/2005. (c/m 10/25/05 lad) (lad3, Deputy Clerk) (Entered: 10/25/2005)
10/17/2005
29 Sealed Document (lad3, Deputy Clerk) (Entered: 10/25/2005)
10/05/2005
Sealed hearing held before Messitte, J. (Reporter: O'Neill) (esp, Deputy Clerk) (Entered: 10/06/2005)
09/29/2005
28 Correspondence from the Assistant to Judge Peter J. Messitte to Counsel of Record/Pro Se Parties as to Kenneth Ford, Jr re: the section 5 hearing originally scheduled for 10:00 a.m. on October 24, 2005 has been RESCHEDULED to October 31, 2005 at 11:00 a.m. (Courtroom 4C) (c/m 9/29/05 rs)(zf, Deputy Clerk) (Entered: 09/30/2005)
09/27/2005
27 Sealed Document (lad3, Deputy Clerk) (Entered: 09/27/2005)
09/27/2005
26 Sealed Document (lad3, Deputy Clerk) (Entered: 09/27/2005)
09/23/2005
25 Sealed Document (lad3, Deputy Clerk) (Entered: 09/23/2005)
09/21/2005
24 Government's Request For Extension of Time to File 6 CIPA Notice and ORDER "Approving" the same as to Kenneth Wayne Ford, Jr. Signed by Judge Peter J. Messitte on 9/20/05 (c/m 9/21/05 esp) (zf, Deputy Clerk) (Entered: 09/21/2005)
09/01/2005
23 Correspondence from the Assistant to Judge Peter J. Messitte to Counsel of Record as to Kenneth Wayne Ford, Jr re: confirmation that the trial currently scheduled for November 15, 2005 has been RESCHEDULED to November 29, 2005 at 10:00 a.m. (Courtroom 4C) (c/m 9/1/05 rs) (zf, Deputy Clerk) (Entered: 09/02/2005)
08/26/2005
22 ORDER Regarding Speedy Trial Act, 18 U.S.C. 3161as to Kenneth Wayne Ford Jr. (1) Signed by Judge Peter J. Messitte on 8/24/05 (c/m 8/29/05 zf) (zf, Deputy Clerk) (Entered: 08/29/2005)
08/22/2005
21 ORDER granting 20 Motion to Withdraw as Attorney. Bruce Allen Johnson, Jr withdrawn from case as to Kenneth Wayne Ford Jr. (1). Signed by Judge Peter J. Messitte on 8/22/2005. (c/m 8/23/05 lad) (lad3, Deputy Clerk) (Entered: 08/23/2005)
08/18/2005
20 MOTION to Withdraw Appearance by Bruce A. Johnson, Jr as to Kenneth Wayne Ford, Jr. Responses due by 9/6/2005 (c/s)(zf, Deputy Clerk) (Entered: 08/18/2005)
08/17/2005
19 Sealed Document (zf, Deputy Clerk) (Entered: 08/17/2005)
08/16/2005
18 Sealed Document (zf, Deputy Clerk) (Entered: 08/17/2005)
08/16/2005
17 Sealed Document (zf, Deputy Clerk) (Entered: 08/17/2005)
08/16/2005
16 Sealed Document (zf, Deputy Clerk) (Entered: 08/17/2005)
08/15/2005
Status Conference held in open court on the record as to Kenneth Wayne Ford, Jr held on 8/15/2005 before Judge Peter J. Messitte. (Court Reporter O'Neill) (esp, Deputy Clerk) (Entered: 08/15/2005)
08/15/2005
15 MOTION to Toll Speedy Trial Clock by USA as to Kenneth Wayne Ford, Jr. Responses due by 9/1/2005 (c/s)(zf, Deputy Clerk) (Entered: 08/15/2005)
08/08/2005
14 Stipulation re: Return of Exhibits to Counsel. (esp, Deputy Clerk) (Entered: 08/09/2005)
08/08/2005
13 EXHIBIT LIST by Kenneth Wayne Ford, Jr. (esp, Deputy Clerk) (Entered: 08/09/2005)
08/08/2005
12 EXHIBIT LIST by USA as to Kenneth Wayne Ford, Jr. (esp, Deputy Clerk) (Entered: 08/09/2005)
08/08/2005
Sealed hearing held before Messitte, J. (Reporter: Anneliese Thomson) (esp, Deputy Clerk) (Entered: 08/09/2005)
08/03/2005
11 Sealed Document (zf, Deputy Clerk) (Entered: 08/03/2005)
08/01/2005
10 Sealed Document (zf, Deputy Clerk) (Entered: 08/01/2005)
07/18/2005
9 NOTICE OF ATTORNEY APPEARANCE: Spencer M Hecht appearing for Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 07/19/2005)
06/23/2005
8 Sealed Document. Modified on 8/1/2005 (zf, Deputy Clerk) (Entered: 06/23/2005)
06/17/2005
7 Request for Discovery Pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure and Rule 404(b) of the Federal Rules of Evidence by Kenneth Wayne Ford, Jr. Responses due by 7/5/2005 (c/s)(zf, Deputy Clerk) (Entered: 06/17/2005)
06/17/2005
6 MOTION to Suppress Evidence by Kenneth Wayne Ford, Jr. and request for hearing. Responses due by 7/5/2005 (c/s)(zf, Deputy Clerk) (Entered: 06/17/2005)
06/17/2005
5 NOTICE OF ATTORNEY APPEARANCE: Spencer M Hecht appearing for Kenneth Wayne Ford, Jr (c/s) (zf, Deputy Clerk) (Entered: 06/17/2005)
06/16/2005
4 Government's RESPONSE in Opposition to Defendant's Motion to Suppress Evidence (originally filed on 6/10/05)(c/s) (zf, Deputy Clerk) (Entered: 06/16/2005)
06/13/2005
3 Memorandum from the Assistant to Judge Peter J. Messitte to Counsel of Record as to Kenneth Wayne Ford, Jr. re: pending motions hearing originally scheduled for July 18, 2005 has been "rescheduled" (c/m 6/10/05 rs) (zf, Deputy Clerk) Modified on 8/3/2005 (zf, Deputy Clerk) (Entered: 06/13/2005)
06/13/2005
2 ORDER Setting Conditions of Release as to Kenneth Wayne Ford, Jr. Signed by Judge Jillyn K. Schulze. (pkf, Deputy Clerk) (Entered: 06/13/2005)
06/13/2005
Plea entered by Kenneth Wayne Ford, Jr Not Guilty on counts 1, 2. held before Judge Jillyn K. Schulze. (E/R Fosbrook.) (pkf, Deputy Clerk) (Entered: 06/13/2005)
06/13/2005
Initial Appearance as to Kenneth Wayne Ford, Jr (Defendant informed of Rights.) held on 6/13/2005before Judge Jillyn K. Schulze. (E/R Fosbrook.) (pkf, Deputy Clerk) (Entered: 06/13/2005)
05/23/2005
Attorney update in case as to Kenneth Wayne Ford, Jr. Attorney Spencer M Hecht for Kenneth Wayne Ford, Jr, Bruce Allen Johnson, Jr for Kenneth Wayne Ford, Jr added. (lad3, Deputy Clerk) (Entered: 06/10/2005)
05/23/2005
1 INDICTMENT as to Kenneth Wayne Ford, Jr (1) count(s) 1, 2 (zf, Deputy Clerk) (Entered: 05/24/2005)