Case: Document: 4-1 Filed: 07/08/2018 Page: 1. No In the United States Court of Appeals for the Sixth Circuit

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1 Case: Document: 4-1 Filed: 07/08/2018 Page: 1 No In the United States Court of Appeals for the Sixth Circuit UNITED STATES OF AMERICA Appellant v. RENE BOUCHER Appellee On Appeal from the United States District Court For the Western District of Kentucky Case No. 1:18-CR MOTION TO DISMISS ON BEHALF OF APPELLEE RENE BOUCHER Matthew J. Baker Attorney at Law 911 College Street, Suite 200 Bowling Green, KY (270) Attorney for Appellee Rene Boucher Oral Argument Requested

2 Case: Document: 4-1 Filed: 07/08/2018 Page: 2 Appellee, Rene Boucher, by counsel, pursuant to Fed. R. App. P. 27 and 6 Cir. R. 27(d), for his Motion to Dismiss the appeal in this case, states as follows. Factual and Procedural History: Dr. Rene Boucher resides at 582 Rivergreen Way, Bowling Green, Warren County, Kentucky. Rand Paul, at all times relevant, has been a United States Senator and has resided at 200 Lakeside Way, Bowling Green, Warren County, Kentucky. Both of these properties are in the Rivergreen subdivision, which is a gated community in Bowling Green, Warren County, Kentucky. Dr. Boucher and Senator Paul share a common boundary line, and their properties are otherwise contiguous to each other. 1. During the summer of 2017, Boucher trimmed the limbs on approximately five maple trees that are on the Boucher/Paul property line. The branches of these trees were low to the ground and extending a substantial distance across Boucher's property. (Boucher Sentencing Memorandum, Docket Entry #26, p. 6). 2. In approximately September 2017, Senator Paul placed a substantial amount of limbs, and the remnants from having his shrubs trimmed, just off the Boucher/Paul property line, but admittedly on Paul's property. This pile of yard trash and debris was approximately ten feet long, 1

3 Case: Document: 4-1 Filed: 07/08/2018 Page: 3 and five feet high. (Boucher Sentencing Memorandum, Docket Entry #26, p. 6). 3. On or about October 10, 2017, Boucher gathered up the pile of yard debris on the Paul property, placed it into portable dumpsters, and had it hauled off. Even though this was not Boucher s trash, nor on Boucher's property, he viewed it as unsightly -- as Senator Paul had placed it directly in Boucher s line of sight from his patio and the back door of his house. (Boucher Sentencing Memorandum, Docket Entry #26, p. 6). 4. On either October 13 or 14, 2017, Senator Paul reconstructed the pile of yard debris at approximately the same location where it was previously located -- just off the property line between the two gentlemen involved. (Boucher Sentencing Memorandum, Docket Entry #26, p. 6). 5. On October 17, 2017, Boucher again hauled off the yard debris -- even though it was not his, and even though it was not on his property. (Boucher Sentencing Memorandum, Docket Entry #26, p. 6). 6. On October 20 or 21, 2017, the pile of yard debris was again reconstructed in the same location. (Boucher Sentencing Memorandum, Docket Entry #26, p. 7). 7. Boucher had discussed this situation with at least two members of the Rivergreen Home Owners Association throughout this relevant time 2

4 Case: Document: 4-1 Filed: 07/08/2018 Page: 4 frame. Specifically, he conversed with Rina Malmquist and Minerva Westray, both of whom were then-members of the Rivergreen HOA. (Boucher Sentencing Memorandum, Docket Entry #26, p. 7). 8. On or about November 2, 2017, Boucher burned the pile of yard debris that had been constructed just off the Boucher/Paul property line. Unfortunately for Boucher, he used gasoline to ignite this fire. The fireball from the gasoline caused him to sustain second degree burns on both of his arms, and the left side of his neck and face. (Boucher Sentencing Memorandum, Docket Entry #26, p. 7). 9. On November 3, 2017, Senator Paul returned from Washington and used his lawnmower to blow all of the leaves from his property onto Boucher's yard. During this process, Paul stepped away from his lawnmower, gathered several branches from adjacent pile of trash, and placed them in the exact location where the last pile had been burned just one day prior. Boucher lost his temper and tackled Paul as Paul was carrying branches from another location on his property and placing them on the property line. Immediately after the incident, Paul referred to Boucher as "crazy." Boucher told Paul that he wanted this to stop. Paul replied that the police would be visiting Boucher. (Boucher Sentencing Memorandum, Docket Entry #26, p. 7). 3

5 Case: Document: 4-1 Filed: 07/08/2018 Page: In fact, on November 3, 2017, the police did visit Boucher. The investigating officer took a recorded statement from him. He was then taken into custody, charged with 4 th degree assault, and lodged in the Warren County Jail. He posted bond the next day and subsequently was arraigned on the state court charge. (Boucher Sentencing Memorandum, Docket Entry #26, p. 8). A copy of the file jacket from the Warren District Court in Commonwealth v. Rene Boucher is attached hereto as Exhibit 1. It confirms that Dr. Boucher was charged with Assault, 4th degree, which is a Class A misdemeanor. KRS While the state court misdemeanor charge was pending, defense counsel was contacted by Hon. Bradley P. Shepherd, Assistant United States Attorney, Southern District of Indiana, on December 5, The initial contact came via , and a copy of this is attached hereto as Exhibit 2. To paraphrase and summarize, Mr. Shepherd indicated that he had been appointed as a special prosecutor to handle the federal prosecution of Rene Boucher, and that it was the government's intention to go forward on an alleged violation of Title 18 U.S.C. 351(e), assault on a congressman. In his message, Mr. Shepherd proposed to proceed by an information, and he discussed a guideline sentence range. He expressly states: "The government would recommend a sentence no higher than the low-end of a guideline range 4

6 Case: Document: 4-1 Filed: 07/08/2018 Page: 6 and you would be free to recommend any sentence authorized by the statute (0-10)." (Emphasis added). 12. Based upon the government s representations, Boucher agreed to proceed by an information, and his signed plea agreement was put to record in the trial court from which the government now appeals. (See P lea Agreement, Docket Entry #5). (Exhibit 3). At page 7 of this plea agreement, Dr. Boucher acknowledged that he is "... aware of his right to appeal his conviction and that 18 U.S.C affords a defendant the right to appeal the sentence imposed. Unless based on claims of ineffective assistance of counsel or prosecutorial misconduct, Defendant knowingly and voluntarily waives the right (a) to directly appeal his conviction and the resulting sentence pursuant to Fed. R. App. P. 4(b) and 18 U.S.C. 3742, and (b) to contest or collaterally attack his conviction and the resulting sentence under 28 U.S.C or otherwise." 13. Subsequently, Shannon D. Teague, U. S. Probation Officer, filed her Presentence Investigation Report within the trial court proceedings on June 5, (Docket Entry #24). Neither the government nor the defendant made any objections to any item within this report. 5

7 Case: Document: 4-1 Filed: 07/08/2018 Page: The Presentence Investigation Report, referenced immediately above, expressly states in Part A, Paragraph 2 (p. 3 of the report) (Exhibit 4), that: On March 9, 2018, the defendant pled guilty to one count(s) of a one-count Information. Pursuant to Rule 11(c)(1)(B), the government agrees to recommend, or agrees not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply. Such a recommendation or request does not bind the Court. 15. Final sentencing was conducted in open court on June 15, During the course of this proceeding, Boucher separately executed a written waiver of his right to appeal the sentence imposed by the Court. (Docket Entry #33). (Exhibit 5). 16. At final sentencing, Dr. Boucher was sentenced to thirty days incarceration, a $10, fine, and 100 hours of community service. (Docket Entry #37). (Exhibit 6). 17. The United States of America timely filed its Notice of Appeal on June 29, (Docket Entry #41). Law and Argument: Rene Boucher, the Defendant in the trial court, and the Appellee herein, hereby moves to dismiss the government's appeal, stating that the government has both explicitly and implicitly waived its right to appeal these proceedings. 6

8 Case: Document: 4-1 Filed: 07/08/2018 Page: 8 A near-identical fact pattern was presented in United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991). (Exhibit 7). In Guevara, the defendant entered into a plea agreement with the government in which she agreed to plead guilty to defrauding the Immigration and Naturalization Service under 18 U.S.C. 1001, to committing mail fraud under 18 U.S.C. 1341, and to the laundering of money instruments under 18 U.S.C She was sentenced to 28 months in prison, to be followed by three years of supervised release. The government appealed. Within her plea agreement, Guevara waived her right to appeal. Her waiver is nearly identical to the waiver that Rene Boucher executed in the matter now pending. The 4th Circuit expressly held that the government had also waived its right to appeal, stating: "... [W]e are of opinion that such a provision against appeals must also be enforced against the government, which must be held to have implicitly cast its lot with the district court, as the defendant explicitly did." The 4th Circuit dismissed the government's appeal accordingly. Clearly, in the matter now pending, the government cast its lot with the district court on the issue of sentencing, and it agreed to be bound by whatever decision that the trial court determined to be fair. It must be expressly iterated -- and reiterated -- that, from the outset, the government 7

9 Case: Document: 4-1 Filed: 07/08/2018 Page: 9 took the position that: "The government would recommend a sentence no higher than the low-end of a guideline range and you [defense counsel] would be free to recommend any sentence authorized by the statute (0-10)." (Emphasis added). The PSR in this case also expressly confirms that: Pursuant to Rule 11(c)(1)(B), the government agrees to recommend, or agrees not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply. Such a recommendation or request does not bind the Court. (Emphasis added). It is completely disingenuous, on the one hand, for the government to agree not to oppose a defendant s request that a particular sentence or sentencing range is appropriate, and then -- on the other hand -- to appeal the sentence because it is not draconian enough to suit the government. Stated another way, the government expressly agreed that whatever sentence the trial imposed would be appropriate; however, now that the sentence does not suit the government, it is challenging the propriety of the sentence on appeal -- in direct contravention of its agreement not to do so. To be right to the point, it is clear that the government waived its right to appeal. The government cannot, and should not, be permitted to negotiate an agreement whereby the defendant is "... free to recommend any sentence authorized by the statute...", and then complain when the trial court imposes 8

10 Case: Document: 4-1 Filed: 07/08/2018 Page: 10 a sentence that is not to the government's liking. In the same vein, the government cannot, and should not, be permitted to appeal a sentence when it expressly agrees "... not to oppose the defendant's request that a particular sentence or sentencing range is appropriate..." As a final matter, and in a separate proceeding, it was expressly held by the United States Court of Appeals for the Fourth Circuit in United States v. Little, ( U. S. Court of Appeals for the Fourth Circuit, Case No , Decided July 20, 2001 (Unpublished)) (Exhibit 8), that when the government takes an unauthorized appeal from a sentence (just like it is doing in this case), and the defendant's lawyer does not file a motion to dismiss, the lawyer's failure to do so is tantamount to ineffective assistance of counsel, thereby violating the defendant's Sixth Amendment right to counsel. The facts of the Little case are straightforward. Bruce Little was indicted on two counts of bank robbery and bank larceny under 18 U.S.C 2113 (a) and (b). He entered into a plea agreement in which he waived his right to appeal his sentence or other post-conviction action. His sentence was not harsh enough to suit the government, and, ultimately, the government appealed Little's sentence. Little's attorney did not file a motion to dismiss the appeal, and Little received a stiffer sentence on resentencing. Thereafter, Little retained a new attorney, who argued that the prior attorney provided 9

11 Case: Document: 4-1 Filed: 07/08/2018 Page: 11 ineffective assistance by failing to point out that the government was barred from appealing his sentence, and the 4th Circuit held: "The lawyer completely omitted (or missed) his best argument, that the government had implicitly waived its right to an appeal." The court concluded that the failure of counsel to file a motion to dismiss such an appeal constitutes ineffective assistance of counsel. Conclusion: Based upon the express agreements between the parties in this case, as well as the precedent in United States v. Guevara, 941 F.2d 1299 (4th Cir. 1991), Appellee Rene Boucher moves to dismiss the government's appeal in this case. The government has both explicitly and implicitly waived its appeal, and this matter should be summarily dismissed. Dated: July 8, Respectfully submitted, /s/ Matthew J. Baker Matthew J. Baker Attorney at Law 911 College Street, Suite 200 Bowling Green, KY Telephone: (270) Facsimile: (270) mbakerlaw@bellsouth.net 10

12 Case: Document: 4-1 Filed: 07/08/2018 Page: 12 CERTIFICATE OF SERVICE I hereby certify that on July 8, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a notice of electronic filing to the following: Hon. Bradley Shepherd /s/ Matthew J. Baker Matthew J. Baker 11