Dyess Doomed Despite Wife's Affair With Cop, Apprendi Violation

This is an absolutely twisted, twisted case.

Calvin "Calcutta" Dyess is a former drug kingpin who pleaded guilty to drug charges in order to avoid a life sentence. He was supposed to provide material assistance as part of the deal, but apparently didn't, which ended with him receiving the lifetime bid.

During sentencing, two major snafus happened. First, and more importantly, the amount of drugs wasn't included in the indictment -- a mistake that would appear to create Apprendi problems (Apprendi was decided after Dyess' indictment, but before sentencing).

More salacious was the affair between Dyess' wife Ursala Rader and the investigating officer, William Hart. Rader and Hart later married, though after they subsequently divorced, she accused him of forcing her to lie, being abusive, and "throw[ing] things" while helping her to prepare her testimony, reports the Charleston Gazette.

Dyess heard rumors about the affair while he was in jail, and passed the info along to his attorney. The attorney hired a private investigator, who found absolutely nothing. The attorney refused to bring up the rumors during sentencing without concrete proof.

Majority Opinion

Dismissing most of Dyess' claims through procedural means, the majority glossed over the Apprendi violation, as well as the whole officer-fornicating-with-defendant's-wife snafu.

When it came to Dyess' claim that he received ineffective assistance of counsel for not discovering, and not unveiling the affair between Officer Hart and the adulterous wife-turned-witness Rader, the court stated that an attorney isn't required to discover all possible evidence in existence, especially of an affair that the U.S. Attorney's Office didn't know about until years later.

Besides, the court, in harmless error dicta, says that he would have pleaded guilty anyway. We're not so sure about that one. Plead guilty, and face a life sentence? Or take it to a jury, hold a Mark Fuhrman-esque circus, and claim you were framed? Both options stink, but the latter seems more promising.

As for Apprendi, the court held that it had addressed that question in Dyess's 2007 direct appeal. The court found that he didn't properly raise the claim until remand, and that under Cotton, Apprendi errors should not be recognized on plain error review when evidence of quantity is "overwhelming" and "essentially uncontroverted." (His life sentence required 5 kilograms of cocaine. A witness at trial testified that the conspiracy moved at least 75 to 100 kilos.)

Dyess also tried to argue that his attorney was ineffective for not bringing up, during sentencing, the issue of omitting drug quantities from the indictment. The court reminded him that attorneys aren't soothsayers, and aren't ineffective for not predicting a future rule of constitutional law.

Something's Not Right Here

If this sounds like a bit of a railroading to you, you aren't alone. Judge Roger Gregory's partial dissent from the panel's opinion calls this a "life sentence under troubling circumstances," which he "cannot condone."

Why? We'll dig into the dissent's arguments on Thursday.

Related Resources:

• United States v. Calvin Dyess (Fourth Circuit Court of Appeals)
• U.S. Attorney's Office Gets Called Out for Ethics Violations (FindLaw's U.S. Fourth Circuit Blog)
• Grope in Response to Homosexual Sex Sting, Flirtation Not Obscene (FindLaw's U.S. Fourth Circuit Blog)