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United States v. Wall

United States District Court, D. New Mexico

December 13, 2017

HOUSTON WALL, Defendant.

          Peter Schoenburg and Alicia C. Lopez Rothstein Donatelli LLP Attorneys for Mr. Wall

          Paul Mysliwiec ASSISTANT UNITED STATES ATTORNEY Attorney for the United States



         This 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.

         I. Background

         On 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].

         As part 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 obligation.
• 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.

         For its 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.[1] 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].

         Afterwards, 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 avoided.” Id.

         Thereafter, 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 providing ...

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