Honorable Robert E. Jones
District of Oregon
This whole thing, as I say, is very
sad for me. I have no choice but
to impose the 180-month minimum . . . .
And other than that, I can say to you that this sentence is imposed
because the Congress has demanded it.
It's imposed to protect the public and society. And other than that, I am very sorry.[1]
Appointed by:
President
George H.W. Bush, 1999.
Law School:
Northwestern
College of Law, LL.B. 1953.
Military Service: U.S.
Naval Reserve, 1945-47; 1949-87; Retired Captain,
U.S. Navy, JAG Corp.
Prior Legal Experience: Windsor, Jones & Briggs, 1953-56; Solo practitioner,
1956-58; Anderson, Franklin, Jones, Olsen & Bennett, 1959-63.
Prior Government Service: Oregon State Representative, 1963.
Prior Judicial Service: Oregon 4th Circuit Judge, 1963-82; Associate
Justice, Oregon Supreme Court, 1983-1990.
Background and Reputation in the Legal Community
Judge Jones served in the United States Navy, the Naval
Reserve, and in the Navy's JAG Corp.
After graduating from law school from Northwestern College of Law, he
practiced law for ten years with two firms, and briefly as a solo practitioner.
After a year as an Oregon state representative, he was appointed as an Oregon
Circuit Judge. He served as a
state trial judge for nineteen years before being promoted to the Oregon
Supreme Court, where he stayed until his appointment to the federal bench.
Judge Jones also has substantial experience in legal education,
as an adjunct professor at Lewis & Clark Law School, Willamette University
School of Law, the National Judicial College, and the American Academy of
Judicial Education. He also served
on the Board of Overseers of the Lewis & Clark Law School, as a master with
the American Inns of Court, and as President of the Oregon Trial Lawyer's
Association. Judge Jones has
received many awards from university and bar groups for his service and
accomplishments in his long career.
With regard to criminal justice issues, Judge Jones served as Chairman
of the Oregon Commission on Prison Terms and Parole Standards and the Oregon
Criminal Justice Council.
Judge Jones' abilities are considered excellent. Lawyers interviewed said that he
challenges lawyers and demands preparation. He is considered an expert on evidence law and otherwise
deemed a scholarly judge. Although
he is considered conservative and pro-business, civil attorneys consider him
fair and a "straight arrow."
In the civil arena, Judge Jones is well known for his
ruling in a breast implant case in which he held that there was insufficient
evidence that these devices caused systemic diseases in women, holding that
expert testimony had to show that the implants probably caused disease, not
just that they possibly could.
Judge Jones wrote that he recognized that his opinion, "goes farther in
evaluating and eliminating plaintiffs' claims than any other opinion in breast
implant litigation pending in the country."[2] Newspapers
also report his comments in an anti-abortion protester case where he rebuked a
witness by saying, "Truthful means truthful . . . This is not a Clinton
deposition."[3]
Criminal defense attorneys say Judge Jones is fair to
defendants. One lawyer is quoted
as saying that the judge "laments about the guidelines and the mandatory
minimums."
Judge Jones on Sentencing Policy
Judge Jones writes that
Over the last 40 years I have observed
the evils of having no guidelines, with some very lenient judges imposing
entirely inappropriate light sentences.
On the other hand, I have observed the injustice of mandatory minimums
and the injustice of too limited discretion under national guidelines. I do believe there is a compromise
where we have guidelines but leave discretion to the sentencing judges to
depart upward or downward.
Sentencing never gets any easier and certainly is one of the most
challenging duties of a judge.[4]
After he took senior status in 2000, Judge Jones no longer
took routine criminal cases but he continued to handle complex criminal matters
and states that he feels completely comfortable imposing substantial and severe
sentences in those matters when appropriate. For example, he sentenced Packward
Kaleilani Toulupe to forty years as the leader of a methamphetamine conspiracy
and he gave a twenty year sentence to sixty one year old Walter J. Hoyt III, in
a white collar case involving the sale of limited partnerships in a cattle
venture. In regard to Hoyt, Judge
Jones noted that the sentence was "justly deserved" despite the defendant's ill
heath.[5]
James S. Flack
Offense: Conspiracy to Possess with Intent to Distribute
Methamphetamine.
Sentence: 240 months.
Release Date: July 14, 2006.
James Flack was a cook for a fairly sophisticated
methamphetamine ring in Rogue River, Oregon. When police raided the laboratory, they found a TV
surveillance system, a large amount of cash, a gun and over 30 pounds of high
quality methamphetamine. James was
present when the lab was raided and he was immediately arrested.[6] Ultimately,
he was indicted along with five others.
The government asserted that Michael Zivich and Steven Bates were the
partners and financiers of the operation, James was a cook, as was another
co-defendant, Gary Foster, who also knew how to upgrade the quality of the drug
into "ice," a higher grade of meth.
The retailers of the organization were unclear, although Zivich admitted
that the product was distributed through "biker groups" in the Southern
California and Nevada areas.[7]
James and Bates pled guilty in exchange for the dismissal
of some charges and an agreed cap on their sentences of twenty years.[8] This turned
out to be a smart move. Under the
Guidelines, pure methamphetamine, known as "ice," is treated more severely than
other forms of the drug or its byproducts. Thus, the 30 pounds of pure meth translated to an Offense
Level of 40. Two points were added
for a gun and two deducted for his plea.
With no prior criminal record, James' Guideline range without the plea
agreement would otherwise have been 292-365 months.
At sentencing, James told the judge that he understood what
he did was wrong and that he was truly sorry.[9] He candidly
admitted that he ". . . didn't realize . . . while committing the crime that
the penalties were so severe. Had I known that, I don't think I would have
remained involved in it. . . . I
didn't think I was risking 20 years of my life. And I'm sorry I did that.[10] Judge Jones
asked him if he had given any consideration to the damage caused by his
production of methamphetamine.
Again, James was quite honest.
He told the judge that in retrospect certainly, but at the time, he had
not really thought about it, saying "when I was in the process of . . . making
the meth, I never realized that.
Maybe I was blinded to the fact that there was Ð you know, there was a
large demand. . . . if so many people wanted it, can it be bad?"[11]
After this exchange, Judge Jones spoke to James further
before he imposed the required twenty year sentence. He stated that
I suppose that federal judges have
spent a lot their time imposing sentences complaining about the Congressional
acts that have restricted our discretion.
And that the amount of time
that are imposed by the Congress for these offenses is disproportionate to not
only state sentences but other federal crimes."[12]
He went on to note that earlier that morning the Sentencing
Guidelines had dictated only a twelve month sentence for a white supremacist
convicted of a dynamite charge.
Judge Jones said he perceived that defendant to be "far more dangerous"
than James. He said, "the
inequities here are just terrible . . . 12 months for possession of dynamite by
an unrepentant person; versus looking at [Mr. Flack] as a non-sociopathic
individual with no record, no signs of violence, and who went into this
situation strictly to make a fast buck."[13]
Lastly, Judge Jones told James that as a "cook" for the
operation, he couldn't give him a reduction for minor role nor eliminate the
enhancement for the gun found in the house when he was arrested.
The judge commented that he was
. . . very sympathetic.
If I could, as a matter of working with my heart versus my head, I would
very much like to get your sentence down to a range of 188 to 235, but I would
have to compromise the facts to get there. I think that is where you belong. [ ] I've even considered
departing to get there, but I don't' see that I can. . . .
No matter how I cut it, I can't get
below the 20 years. I would like to, very frankly. I would like to do the things your lawyer has suggested, and
I just can't intellectually do
that without cheating on the facts. And I don't think we're supposed to play
games with these guidelines.[14]
Judge Jones then imposed the twenty year sentence, telling
James, "Again, I sentence you, Mr. Flack, with a heavy heart. I'm sure that doesn't help you any. But
I just can't mess around with the facts or the guidelines."[15]
Prior to this case, James had no criminal record. He graduated from high school in 1975
and had held a variety of manual labor jobs for a few years. He then was
employed by a drilling company for five years and before turning to
construction work. In the late
1980s, James developed a serious addiction to methamphetamine. He tried drug rehabilitation at the
Betty Ford Center in January 1990, but his treatment was unsuccessful and his
addiction eventually led him into this offense.[16]
Ten years later, James wrote to Judge Jones and detailed
the steps he has taken to educate and rehabilitate himself. He earned an Associates Degree with a
3.85 GPA and was working towards a Bachelors Degree through correspondence
courses. He successfully completed
500 hours of a drug treatment course, learned to speak fluent Spanish, and took
many hours of computer, clerical, building trades, and other self-help courses
including certification as a personal trainer.
He was also able to repair some of his relationships with
his family and he converted to Buddhism as part of his efforts to become a more
spiritual person. He told the
judge he hoped to "illustrate that a person can make life-long changes and find
purpose and a measure of success while serving a long prison sentence."[17] James
shared with the Judge that he had become engaged to a woman he met through a
college course and hoped to work towards an M.B.A.
Judge Jones wrote back thanking James for his letter. He noted that over thirty-eight years
as a judge before taking senior status, he had sentenced some 10,000
felons. "Unfortunately, rarely
have any of them rehabilitated themselves to the extent you have. You are to be commended in the
strongest terms for your attitude and your many achievements."[18]
Judge Jones wrote recently that a ten year sentence would
have been appropriate for James.
He notes that ". . . Mr. Flack is just one of many methamphetamine
manufacturers who received Draconian sentences with no apparent deterrent
effect, as methamphetamine is still prevalent in Oregon and has polluted
portions of the Hawaiian islands."[19]
James was released on July 14, 2006 and his supervised
release was transferred to the Central District of California to allow him to
relocate there.
Compiled from Sentencing Transcript (excerpt), PSI,
inmate letters, letters from Judge Jones, PACER docket sheet.
Michael David Powell
Offense: Felon-in-Possession of a Firearm.
Sentence: 15 year mandatory minimum.
Release Date: May
12, 2003.
During the summer of 1989, thirty-eight year old Michael
Powell was with his family on a camping trip in a national forest in
Oregon. At the time, he was
involved in the music business in Los Angeles and running two organic farms in
Ohio. When police officers in
camouflage approached his camp, Michael wasn't sure at first who they were so
he grabbed his son's rifle and fled into the woods. Eventually, having become separated from his family, he
hiked towards town with the rifle and some other equipment tied together. He was arrested without incident on his
walk back, pursuant to a warrant for him in Ohio on a matter that was later
determined to concern his son.[20] No Oregon
state charges were filed against him for carrying the rifle and Michael returned
to Ohio to resolve the warrant issue.
That seemed to be the end of the matter until a year later, federal
agents arrested Michael in Ohio for being a felon-in-possession of a firearm
and the indictment charged him under the Armed Career Criminal Act ("ACCA")
because he had three prior convictions which qualified as "crimes of violence."
Michael still disputes the facts that underlay his prior
offenses, which are discussed in detail below. Suffice to say, that reading between the lines, his drug use
and lifestyle, combined with some bad judgment in his youth, resulted in these
convictions for serious offenses much earlier in his life.
His first conviction occurred in 1976. Michael was accused of participating in
a series of armed robberies in which his estranged wife's car was used. On May 5, 1976, he was sentenced on
four counts of aggravated robbery committed over a three day period. On May 10, 1976, he was sentenced on
two more counts of aiding and abetting robbery for offenses during the same period,
but in a different county. He
claims that he did not participate in these offenses but also refused on
principle to help the police and identify the person he knew had committed
these crimes.[21] For these
convictions, he received two years probation which was later shortened.
By 1978, Michael was a self proclaimed hippie, living in a
commune and using peyote and marijuana.
He decided to go on a
camping trip with a few friends and ended up hitchhiking in New Mexico where
they were picked up by a rancher.
Michael claims the man became abusive and attacked him after threatening
to sexually assault his friend's fourteen year old companion. Michael states that he shot the man
with a pistol his friend had given him when the rancher came at him with a pipe
and knife.[22] Midway
through a contentious trial, Michael decided to plead guilty. Although he believed he was pleading to
negligent homicide, the court records reflect a plea to second degree
murder and he was sentenced to
three and half years, rather than the six months he claims he was offered for
pleading.[23]
After these convictions, Michael's life settled down
somewhat and he became better noted for his creativity and
entrepreneurship. He has been an
artist and songwriter and music producer, including being a member of an early
version of the rock group Devo. He
operated two independent music labels in California and in Ohio and a
contracting company, where he also farmed and raised livestock. As he puts it, "I've done a lot of
things and I've done them well. . . . Whatever I do, I put myself into 200%."[24]
Judge Jones agreed, in part, with this assessment. At the May 22, 1991 sentencing hearing,
he remarked that
Well, there's no doubt, Mr. Powell,
that you possess remarkable artistic talents. I don't understand all the
symbolism attached to it. . . .
I was also very impressed with the letter you received from Bernard
Shaw. And obviously you have a lot of basic talent, which is what makes this
situation all the more pathetic.[25]
The judge then explained that a mandatory fifteen year term
applied under the ACCA. He told
Michael that
I cannot change your past
behavior. I cannot change your
past convictions. The fact of the
matter is that they are there, and you knew they were there. You had no business whatsoever having
any weapons with you at the time that you were out in the forest, whether they
were in your possession or your family's possession, particularly after this
event in Ohio when you were in fugitive status. You knew about your son's involvement.
It all adds up to a very pathetic
situation. I have no basis to
depart. If I departed, I would be
violating what Congress has dictated for the person who [did what you did]. Obviously,
I can say this, that your situation did not impress me as an aggravated one.[26]
Judge Jones then articulated his belief that Michael and
his family were attempting to live out in the woods "without the intent of
committing any present or future crime. And that you just wanted to be left
alone. And that it was incredibly bad judgment that you exercised in running
away with a rifle. But we cannot live by hindsight."[27] In
conclusion, he told Michael that
This
whole thing, as I say, is very sad for me. I have no choice but to impose the 180 month minimum. . .
. And other than that, I can say
to you that this sentence is imposed because the Congress has demanded it. It's imposed to protect the public and
society. And other than that, I am
very sorry.[28]
In 2001, Judge Jones also wrote a letter on behalf of
Michael as part of his application for commutation or reduction of his sentence.[29] The judge
wrote, "I was well aware of Mr. Powell's extremely serious criminal background
at the time of sentence.
Nevertheless, at the time of this offense that required a 15 year
sentence, Powell was not engaged in any criminal activity per se, other than
becoming frightened at the campsite and possessing his son's .22 caliber
hunting rifle. There was no
evidence that he had intentions to use this rifle in any criminal fashion."[30] The petition
was denied.
While in prison, Michael also converted to Buddhism and he
participated in three separate ordination ceremonies, each time increasing his
level of devotion and commitment.
He has practiced and taught meditation for over thirteen years.
In May 2003, Michael was released. As communicated by letter, his plan was
to stay with his mother and then spend some time with his Tibetan teachers and
on retreat in the wilderness. After some time to re-acclimate, he wrote that he
will decide how to best serve society. In his words, "There is no down time
once a being truly enters the path of altruism. Every moment is a precious gift and a precious, unlimited
opportunity to manifest the intent for the benefit of our fragile, living
family."[31]
In a recent letter, Judge Jones said he felt a sentence of
seven to eight years would have been adequate for this case, noting that "The
facts of his violation simply did not match with the written word of the
guidelines."[32] He said about
Michael, "I recognize his violent past and I am keeping my fingers crossed for
his future."[33]
Compiled from Sentencing Transcript, inmate letters,
appellate opinions, correspondence from judge, PACER docket sheet.
Sentencing Transcript at 8, United States v. Michael David Powell, Cr. No. 89-60105 (May 22, 1991 D. Or.).
Oregonian, December 18, 1996.
National Law Journal, Feb. 1, 1999.
November 6, 2003 letter from Judge Robert E. Jones to author at 2 (on file with author).
Id. at 1.
A search warrant of James' home in Romoland, California yielded an additional 4.3 pounds of meth and two fully automatic machine guns. Charges arising from that search were dismissed as part of the plea deal in this case.
One co-defendant cooperated and received 48 months. Two went to trial and were convicted; Zivich received life without parole and Foster was sentenced to 360 months.
July 23, 1998 letter from James Flack to Tracy Bergmann, Families Against Mandatory Minimums, at 1 (copy on file with author).
James said, "I wanted to tell the Court that I realize what I did was wrong. I realize the seriousness of the crime that I committed. And I am truly sorry for committing the crime." Sentencing Transcript at 59, United States v. James Sanford Flack, Cr. No. 90-60055-2 (D. Or. June 25, 1991).
Sent. Tr. at 59-60.
Sent. Tr. at 60.
Sent. Tr. at 63.
Sent. Tr. at 63-64.
Sent. Tr. at 64-65.
Sent. Tr. at 67.
The Betty Ford Center staff diagnosed him as having a history of poly-drug abuse including meth, amphetamines, alcohol, as well as a serious gambling problem. Nevertheless, he was released with staff approval after one month of treatment.
June 13, 2001 letter from James S. Flack to Judge Jones at 2 (copy on file with author).
June 27, 2001 letter from Judge Jones to James S. Flack at 1 (copy on file with author).
March 27, 2003 letter to author, App. B at 1-2 (on file with author).
Drugs and guns had been found in a search of the defendant's family home in Ohio in April 1989. Michael's son later testified before a grand jury that these items belonged to him (although no charges had been filed against the son at the time of Michael's federal sentencing two years afterwards). As a result, the charges against Michael in Ohio were dropped.
March 27, 2003 letter to author at 1-2 (on file with author).
Id. at 2.
This version of his criminal record comes from the 9th Circuit opinion denying his direct appeal. See United States v. Powell, 967 F.2d 595, 1992 WL 127038 (9th Cir. (Or.)) Michael believes that his Federal Public Defender failed to bring information to the court's attention that would have resulted in some of these convictions not being considered for ACCA purposes, in which case, his Guideline range would have been, according to him, only 4-11 months. See March 6, 2003 letter to author at 2 (on file with author).
March 27, 2003 letter to author, App. A at 2 ( on file with author).
Sent. Tr. at 7.
Sent. Tr. at 7-8.
Sent. Tr. at 8.
Sent. Tr. at 8.
Michael tried to obtain an early release due to his father's serious illness but this request was denied.
November 2, 2001 letter from Judge Jones to Whom It May Concern at 1 (copy on file with author).
March 27, 2003 letter to author at 3 (on file with author).
November 6, 2003 letter from Judge Jones to author at 1 (on file with author).
Id.