United States District Court, D. New Mexico
Schoenburg and Alicia C. Lopez Rothstein Donatelli LLP
Attorneys for Mr. Wall
Mysliwiec ASSISTANT UNITED STATES ATTORNEY Attorney for the
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the United States' Third
Motion for a Felony Trial Setting. [Doc. 90]. The Defendant,
Houston Wall, opposes the motion. Based upon the pleadings of
the parties, the facts of this case and applicable law, the
government's motion is hereby denied.
February 25, 2015, the government filed an Indictment
charging Mr. Wall with one felony count of violation of 18
U.S.C. § 1001(a)(3) and Title 7 C.F.R. Part
205-knowingly, making a false statement of a material fact in
an application for organic certification that he would fully
comply with all applicable organic production regulations
when in truth and in fact, he was not in compliance with the
organic production regulations in accordance with the
National Organic Program rules, and had failed to notify and
would continue to fail to notify the New Mexico Organic
Commodities Commission about such violations. [Doc. 2]. On
May 14, 2015, the government filed an Information charging
Mr. Wall with one misdemeanor count of misbranding and
selling foods as “organic, ” in violation of 21
U.S.C. §§ 331(b) and 333. [Doc. 21]. The same date,
Mr. Wall pleaded guilty to the misdemeanor count. [Doc. 25].
of the plea agreement, Mr. Wall admitted that:
• From August through December of 2010, he grew cotton
and foods (blue corn, yellow corn, peanuts and wheat) using
chemical pesticides and growth agents, but misbranded them as
“organic” and sold them to various customers who
were in other states and who he knew would sell some of the
foods in other states as well as in New Mexico. He knew the
foods and cotton he was growing and selling did not meet the
definition because of the specific chemical pesticides and
growth agents he used to grow them, but misbranded them in
order to get better prices for them and make more money.
• He understood his obligation to provide the U.S.
Pretrial Services and Probation Office with truthful,
accurate and complete information and represented that he had
complied with and would continue to comply with this
• Except under circumstances where the Court, acting on
its own, rejected the plea agreement, he agreed that upon his
signing of the plea agreement, the facts that he admitted
under the plea agreement, as well as any facts to which he
admitted in open court at his plea hearing, would be
admissible against him under Fed.R.Evid. 801(d)(2)(A) in any
subsequent proceeding, including a criminal trial, and he
waived his rights under Fed. R. Crim. P. 11(f) and
Fed.R.Evid. 410 with regard to the facts he admitted in
conjunction with the plea agreement.
Id. at 5-6.
part, the government agreed that, provided Mr. Wall fulfilled
his obligations under the Plea Agreement, after sentencing on
the Information, it would move to dismiss the indictment
pending against him and would not bring additional criminal
charges against him. Id. at 7-8, ¶ 17. Both Mr.
Wall and the government agreed that restitution was
appropriate in the case to those who purchased the misbranded
foods and commodities, and that the exact amount of
restitution should be determined by the Court after the
presentation of evidence and argument at sentencing.
Id. at 5. After signing the plea agreement, Mr. Wall
participated in a colloquy under oath, during which he
affirmed his admissions and acceptance of the terms of the
plea agreement. [Doc. 22].
however, Mr. Wall's attorney, Ray Twohig, failed to
provide the Probation Office with truthful, accurate and
complete information. As a result, United States District
Judge Michael Reagan found “that defense counsel has
been less than forthcoming in responding to Probation's
requests and . . . has been lax in adhering to his duty of
candor to the Court.” [Doc. 45 at 1]. Additionally,
Judge Reagan concluded that “the methodology used by
the government to calculate the loss at issue, and therefore
the potential fines, may be superseded by this data at a
significant loss of time and productivity at the
government's expense that could easily have been
at a September 21, 2016, hearing, the Court concluded that
“Mr. Wall's failure to cooperate with Judge
Reagan's order made during the telephonic conference of
February 10th, 2016, and his failure to respond to the
Probation Office's many requests for adequate information
to calculate loss and Mr. Wall's net worth and ability to
pay a fine make it impossible for this Court to accept the
parties' stipulated sentence of five years.” [Doc.
54 at 10]. In compliance with Fed. R. Crim. P. 11(c)(5), the
Court advised Mr. Wall:
My obligation now, Mr. Wall, is to advise you that I'm
not required to follow the Plea agreement and you have the
opportunity to withdraw your plea. If you do not withdraw
your plea, the Court can proceed with sentencing and can
dispose of your case in a manner that is less favorable than
the terms that are contemplated in your plea agreement.
[Doc. 54 at 11]. Subsequently, Mr. Twohig withdrew and new
counsel, Peter Schoenburg and Alicia C. Lopez, with Rothstein
Donatelli LLP, entered their appearance as Mr. Wall's
counsel. [Docs. 55-56]. New counsel fully cooperated in