3 76 CR 004 - John Wiley Price Hearing Transcripts

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IN THE DISTRICT COURT OF THE UNITED STATES
- C<lUR1'
U. S. 1 01' rE"";
FOB THE NORTHERN DISTRICT 0.
DALLAS DIVISION -i '. 0 ,g76
MA ..
. R
. McE.LRO'<, Jr .. - .
JOSEPH .._...._...,
UNITED STATES OF AMERICA 13't..._...
"1 vs. NO. CR 3-76-4
8 JOHN W. PRICE
TRANSCRIPT QE.PROCEEDINGS
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BE IT REMEMBERED that on the 23rd day of January, 1976,
before the Honorable Robert Wo Porter, United States
Ddstrict Judge, the following proceedings took place in the
above-styled and numbered cause:
Jl.PPEARANCES:
McCOWN, United States Attorney,
Northern District of Texas,
Fort Worth, Texas,
By Mr. Harry Koch and
Mr. Ao H. Badger,
for United States of America;
.i.\ffi.. J.A1'1ES P. HOPKINS" Dallas, Texas, and
NiEL CLEOPHUS R. STEELE, JR.,
appearing for the Defendant.
ALL.EN WARD
OFFICIAL. C;OURT R.EPOR"fER .. F'ECERAL
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DALLAS, TEXAS 75221
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WITNESS: DIRECT CROSS REDIRECT RECROSS
Leon Joseph Gauthier 60 69
James P. Hopkins
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82 103 113
John Wiley Price 117 138
Cleophus R. Steele, Jr. 152
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Sentencing Proceedings
Motion to withdraw guilty plea Proceedings
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Government's No.1, Contract
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Mentioned
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Defendant's Exhibit No.1, Contract, Offered, Page 129
Admitted, Page 129
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Court Reporter's Certificate
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PRO C E E DIN G S
THE COURT: I will call the docket in
4 its entirely and ask that counsel the presence of
5 the defendant and readiness for arraignment, and then we'll
6 go back and take them individually one at a time.
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THE COURT: All right. The next case on the
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for those of you who have it, has been reset to
iO January 30tho The next case therefore is Criminal
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United States versus John W. Price.
HOPKINS: Your Honor, the defendant is
We are ready to proceed.
THE All right.
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THE COURT: I want to advise each defendant
]7 generally of his rights as follows:
18 You and every defendant may, if you choose, plead
19 not guilty to any offense charged against you. If you plead
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not the Constitution guarantees you the right, one,
to a speedy and public trial in this district, two, to see
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hear and examine all witnesses against you; three, to use
the power and process of the court to compel the
of including the of any witnesses
in your and four, to have the assistance of an
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1 attorney in your defense at all stages of the proceedings.
2 The government must prove your guilt beyond a reasonable
3 doubt. A accused of crime cannot plead guilty
4 unless he is actually guilty. The federal court
5 the penalty if a person is convicted, whether it is on a
6 verdict of the jury or a plea of guilty.
7 Onder the amended I advise you that the
8 attorney for the government the attorney for the defend-
9 ant may engage in discussions with a view towards reaChing
no an agreement that, upon the entering of a plea of guilty or
Ii nolo contendere to a charged offense or to a lesser or
12 related offense, the attorney for the government will do any
13 of the following: A, move for dismissal of other charges,
14 or B, make a recommendation or agree not to oppose the
15 , defendant
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s request a particular sentence, with the
16 understanding that such recommendation or request shall not
17 be binding upon the court, or C, agree that a specific sen-
18 tence is the appropriate of the case. The court
19 shall not participate in any such discussions, and I advise
20 all defendants that the court will entertain plea agreements
21 under the first portion of the amended rule, that is, the
22 attorney for the government and the attorney for the defend-
23 ant reach an agreement for the dismissal of other charges,
24 subject to the approval of the court. However, the court
25 will not hear and will not entertain any recommendations for
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1 I a particular sentence or any agreement as to a specific
2 I sentence, either in open court or elsewhere, for the reason
3 I that, as I have stated before, that it's my view that coo-
4 I stltutionally that responsibility cannot be delegated, and
5 I therefore I won1t entertain plea agreements relative to a
6 ! sentence.
7 I If you are convicted, whether on a plea of guilty
8 I or a verdict of the jury, the court will hear pleas for
9 I leniency from your attorney and from you. If you plead
10 I guilty, your plea must not be induced by any promise, threat,
11 I force or pressure of any kind, inclUding mental pressure.
12 I You should not on any statement or by anyone,
13 I whether with the government or law enforcement or
14 I not, as to what the penalty in your case will be. Plea
15 I agreements to the extent just outlined are but
16 I the defendant and all counsel have a duty to disclose the
17 I existence and details of any agreement which relates to the
18 I plea tendered.
19 I Each defendant who pleads guilty or nolo contendere
20 I will be placed under and the court will make a specific
21 I inquiry as to the existence of any such agreement before a
22 I plea of guilty or nolo contendere is accepted by the court.
23 I No plea agreement will be binding on this court unless first
24 I the details of such agreement are made known to the court
25 I and second the defendant's plea of guilty or nolo contendere
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1 is thereafter accepted by the court. A plea of guilty or
2 nolo contendere -- I beg your pardon a plea of guilty
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must be purely voluntary and it must be entered into just be-
cause you are guilty and for no other reason.
I also want to advise all defendants that upon a
guilty plea, after they are placed under oath, that at that
time, since they'll be ~ ~ d e r oath on the record in the
presence of their counsel, that any testimony they give under
oath cannot be used against them in the charges for which
'they are here or in any criminal or civil charges, save and
except that, if they later change their plea, any testimony
amounting to perjury or false statement can be used against
them to form a basis for prosecution for perjury or false
statement.
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THE COURT: The next case is Criminal 3-76-4,
17 United States versus John W. Price.
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All right. You may read the indictment.
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MR. KOCH: Your Honor, I have been advi'sed by
20 counsel that he will waive the reading of the indictment in
21 this cause.
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THE COURT: All right. You may advise the
23 defendant of the maximum punishment.
24 MR. KOCH: Mr. Price, in United States versus
25 John w. Price, in CR 3-76-4, the maximum penalty in this
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lone-count indictment for false statement in the application
2 for a loan is a ive thousand dollar fine or two years'
3 incarceration in a federal correctional institution or both.
4 Will you give us your age, please?
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MHo PRICE: Twenty-five.
M R ~ KOCH: All right. Since your age is twentY-fiVj'
the court has the discretion of sentencing you under what
8 1s known as the Youth Corrections Act. under that act, you
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9 could receive a maximum penalty of six years, broken down
10 into two phases. The first phase would be incarceration
11 for up to four years. Upon your release from the federal
12 correctional institution or your parole, if you violated
13 any conditions or the release or the parole, you could be
14 sent back to that federal correctional institution for the
15 remaining two years, making a total of six.
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16 I would further advise you that you have a
17 consititutional right to a jury trial. You can enter a plea
18 of either not guilty or guilty this morning. If you enter
19 a plea of not guilty, you would automatically be assigned
20 jury trial, unless you and your counsel waive that right in
21 writing.
22 Have you seen a copy of the indictment?
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MR. PRICE: Yes.
MR. KOCH: Do you understand what is in it?
MR. PRICE: Yes, sir, I do.
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MR. KOCH: Do you understand what the maximum
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MRo PRIOE: Yes, sir> I do.
MR. KOCH: And do you understand how the Youth
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MR. KOCH: All right. Do you understand that you
have a constitutional right to a jury trial?
MR. PRICE: Yes, I do.
MR. KOCH: All right. Thank you.
THE COURT: All right. Mr. Price, you have been
12 furnished with a copy of the indictment?
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MR. PRICE: Yes, sir, I have.
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THE COURT: And it is your desire to waive the
15 reading of it this mor@ing?
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THE COURT: Do you understand the nature of the
charges against you and the maximum penalty to which you
could be subject?
MR. PRICE: Yes, sir.
THE COURT: All right. Mr. Hopkins, does the
defendant understand both the nature of the charges against
him and the maximum penalty to which he could be subject?
MR. HOPKINS: In my opinion, he does.
THE COURTg All right. Having in mind your
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1 Price, how do you plead, guilty or not guilty?
MR. PRICE: GuiltYJ Your HonoT.
THE COURT: Guilty?
PRICE: Yes, Your Honor.
5 THE COURT: All right. Raise your right hand,
6 and the clerk will administer the oath.
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THE All right. You are now under oath,
9 Mr. Price, and do you recall the advice that I gave you a
10 few moments ago to all of the defendants relative to their
11 testimony under oath here this morning?
MR. PRICE: Yes, sir. I do, Your Honor.
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THE COURT: All right. Are you certain that you
14 want to waive a jury trial and confess the charge against
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PRICE: Yes, sir.
THE COURT: To your knowledge, has a plea agree-
18 ment been reached by you or by your attorney on your behalf
19 and the attorney for the government?
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MR. PRICE: No, Your Honor.
THE COURT: Is that your understanding, Counsel?
MR& HOPKINS: Yes, sir.
THE COURT: Mr. Koch, is that your understanding,
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MR. KOCH: Yes, sir.
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THE COURT: All right. Mr. Price, has any
2 attorney, officer or agent for the government offered or
3 promised that you would receive a lighter sentence or proba-
4 tion if you should plea.d gull ty?
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MR. PRICE: No, sir, Your Honor.
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PRICE: No, sir.
THE COURT: You plead guilty of your own free will
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THE You plead guilty solely because you are
guilty and for no other reason?
MR. PRICE: Yes, sir, Your Honor.
THE COURT: Are you at this time under the influ-
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MR. PRICE: No, sir, Your Honor.
THE COURT: All right. Counsel" in your opinion,
is the guilty plea voluntarily and understandingly made by
the defendant?
MR. HOPKINS: In my opinionj it is Your Honor.
THE COURT: All right. Is it consistent with your
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MR. HOPKINS: Yes, sir, it is.
THE COURT: All right. Mr. Koch, you may present
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the factual basis.
MR. KOCH: Your Honor, the facts to support the
plea in United States versus John Wiley Price, Criminal
Number 3-76-4, are that on May the 1st of 1974, John Wiley
Price, defendant, made a false statement to the Guaranty
Bank in Dallas, Texas, a bank the deposits of which were
then and there insured by the Federal Deposit Insurance
Corporation in that he presented a contract with a Roger s.
Mullins to a loan officer of said bank for improvements to
be done on a house owned by Price. Price presented this
contract for the purpose of influencing the loan officer's
decision to act favorably on Price's application for a home
improvement loan. Price then knew that the contract was
false and never entered into by Price with Roger S. Mullins
to make home improvements on his house. Based on this false
contract, the loan officer granted Price a loan for $1,850
which Price never repaid. The loan was Ultimately written
off as a total loss by the bank.
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THE COURT: Mr. Price, is that a correct s t a t e m e ~ t .7'
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of the facts involved in the offense with Which you are .
charged?
MR. PRICE: No, sir, Your Honor> it 1s not.
THE COURT: Would you make a statement of the
facts or correct that statement so that the record will
accurately reflect the facts?
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MR. HOPKINS: Your Honor, may we have a moment,
THE COURT: You may.
All right. You may proceed.
MR. PRICE: Your Honor, on or about May 1st, 1974,
7 it is true that I did present a contract entered into, to my
8 knowledge, with Roger S. Mullins to do work on my home at
9 3302 Reynolds Avenue. At that time, the agent or repreeenta-
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tive for the bank did in fact know that the contract was
true and correct and that the, contract that had been entered
the problem with the contract, that the work had
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already been done on the property, that two-thirds of the
14 work had been done. The representative for the bank at that
15 time did concur with as far as getting the
16 contract and approved. I 1n turn took -- at that
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time, the property was at the title company being abstracted,
at Rexter-Fair Title Company, if I am correct, Your Honor,
and I in turn pickea up one Roger S. Mullins at the Willow
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Creek Apartments and transferred him to Guaranty to
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by the agent or representative for the bank, secretary, that
the contract was still at the title company was not ready
at that particUlar time or that the abstract was not ready.
I then in turn transported Roger S. Mullins back to the
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Willow Creek Apartments where I had picked him up.
At that time, Mr. Mullins and I were sharing an
apartment directly behind this house at 3302 Reynolds, but
it was behind the house that was fronting on 3303 Spurlock.
I in turn left the contract there because Mr. Mullins did
work two jobs. He was a security guard on one job. He
worked all night. He was a contractor on the other job. I
did in turn leave the contract there for Mr. Mullins'
signature.
I in turn had not seen Mr. Mullins in a couple of
days. I called his then girl friend, wheTe I knew he would
be most of the time, and told him that the contract was
there and that I in fact needed Mr. Mullins' signature on
the contract. I returned. I went there every night, of
course. When I contract had been signed. I
in turn took the contract to Mr. Goshay at the bank and
presented it to him, and that's -- and as far as the money,
as I said, the contract, Mr. Goshay was at that tim
that the work, that two-thirds of the work, had been done on
the
At that time, I had three outstanding loans at the
Guaranty Bank. I don't recall exactly what those loans
Your Honor, but I had three outstanding loans. The contract,
the loan was made to payoff those other loans and take a
mechanic's lien against the property, which I did own at tha
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time; so in other words the money, I never came into hand
with' the money. The money was taken and transported when the
3 loan was paid out of that account to payoff the other loana.
4 THE COURT: All right. You say that some portion,
S two-thirds, of the work had already been performed?
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THE COURT: Had Mr. Mullins been paid for that work?
MR. PRICE: No, six, he had not.
THE COURT: And none of the proceeds of the loan
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11 MR. PRICE: No, sir, Your Honor.
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THE COURT: Was it subsequently after the contract
13 was signed you turned it in to the officer of the bank?
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THE COURT: it in fact signed by Mullins? -
MHo PRICE: To the ,best of my knowledge, Your
THE COURT: You didn't see him sign it?
MR. PRICE: No, sir.
THE COURT: Were you familiar with his signature?
MR. PRICE: I Your I never really
22 seen him sign anything, but I had reason to believe that he
23 did sign since he had agreed and had gone to the bank
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THE COURT: All right. Subsequent to the time
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1 you turned the contract in to the bank, when two-thirds of
2 the work had already been done, was any other work performed
3 by Mr. Mullins on the house?
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MR. PRICE: No work was performed by him, but he
5 did deliver to that property at 3302 Reynolds materials.
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THE COURT: All right.
MRQ PRICE: Your Honor, if you will permit, the
8 work to be done was that a concrete porch was supposed to be
9 constructed on the house, a carport at the side, a concrete
10 slab for a carport and a concrete slab for the house in the
11 rear. The concrete porch had already been constructed and
12 so had the carport slab. The only thing that was left to be
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done was the house in the rear, which was never done.
THE COURT: All right. But the factual resume
15 previously given, it states that the contract "not
16 entered into by you and Roger S. Mullins, then you say that
17 in ract it was entered is that correct, the contract?
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THE COURT: It was signed b,y" you and signed by"
THE COURT: And delivered
MR. PRICE: To the best of my knowledge, it was
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TrlE COURT: All right. And was delivered to the
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officer at the bank?
MRo PRICE: Yes, sir.
MR. BADGER: Your Honor, I don't think that there
is any need to go further with this. The government would
object to this. He plead gUilty?
MR. KOCH: He hasn't admitted the facts or the
elements of the crime, Your Honor.
THE COURT: Well, that's what -- it's quite
apparent to me that that's true.
MR. KOCH: Under those the only
thing we Cfu; do 1s have a trial. I would ask the defendant.
He has plead guilty. \Vhat are the reasons that he plead
guilty?
THE COURT: That was going to be my next question..
MR. PRICE: Because, Your Honor, because I am
guilty. I did -- I did enter into the contract.
THE COURT: Did you do it falsely with the intent
not to have the work done and not to repay the money?
MR. PRICE: I did it to payoff the loan, Your
Honor, but I did it in knowing that two-thirds of
the work was already done on the property.
THE COURT: And the existing loans that this
hundred and fifty dollars was used to pay orf, were
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those loans on work done on that very property?
MR. PRICE: Your Honor, they were
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separate loans. I don't recall exactly what the loans were.
I think I had had an overdrawn and then a
couple of other personal loans
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to the best of my knowledge.
THE All right. what I will do,
Mr. Price, I want to consider this, and I will set this for
further proceedings on February 1976, at 9:00 a.m., and
I may want to take additional testimony at that time. If I
am satisfied at that time that there is a factual basis for
your plea of guilty, then I will accept the plea and pro-
nounce sentence, but I want to make certain that that is the
case. In oroer for a presentence investigation report to
be prepared prior to a finding of guilty, it's necessary
that you consent to the preparation of it and to consider-
lng it prior to the time that there is any jUdgment of
guilty. Are you to doing that?
THE COURT: We have the appropriate form here,
which you can get from the clerk, Counsel, and if you and
if you and the defendant will sign that, then we'll enter it
among the papers of the cass.
Mr. Price is presently on bonq?
MR. KOCH: Yes, Your Honor.
THE COURT: Is it agreeable with the government to
continue the bond?
MBe KOCH: We have no objections.
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THE COURT: All right. Mr. Price, I will continue
your and I will set this case for further proceedings
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3 on February 13, 1976, at 9:00 a.m. and order you to return
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MR. PRICE: sir, Your Honor, I will.
THE COURT: All right. You can give it to the
clerk, and we will file that with the papers 1n the case.
You may be excused at this time, Mr. Hopkins.
MR. HOPKINS: Thank you, Your Honor o
(Adjournment until February 13, 1976)
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FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
6 UNITED STATES OF AMERICA
7 VS. NO. CR 3-76-4
8 JOHN W. PRICE
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TRANSCRIPT Q[ PROCEEDINGS
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BE IT REMEMBERED that on the 13th day of FebruarY3 1976,
before the Honorable Robert w. Porter, United States District
Judge, the following proceedings took place 1n the above-
styled and numbered cause:
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APPEARAi"iCES:
MICHAEL P. United States Attorney,
Fort Texas,
By Mr. A. H.
appearing for United States of America;
MR. JAMES P. HOPKINS, Dallas, Texas, and
ME.. CLEOPHUS R. STEELE, JR.,
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PRO C E E DIN G S
THE COURT: All right. The next case is Criminal
4 Number 3-76-4, United States versus John Price.
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All right. Is the defendant present and ready ror
the proceedings that this cause was continued to?
MR. HOPKINS: Yes, Your Honor, he is.
THE COURT: All right. And I believe that the
record will show that at that point that the defendant had
entered a plea of guilty and that plea had not been acted
upon by the court and I therefore continued it to this date
for further proceedings.
Is the present and ready to proceed,
Mr. Badger?
MR. BADGER: <0 Yes, we are, Your Honor.
THE COURT: All right. You may proceed.
MR. BADGER: Your Honor, does the court desire the
government to rearraign the defendant at this time? I am
not sure exactly what the nature of this proceeding 1s. We
have some documents here, which the court asked us to provide
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copies of the contract and a promissory which were the
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provide the court with one and mark one for the record and
alBa one for the defense and myself.
THE COURT: why don't you do that? I see
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1 no necessity to rearraign Mr. Price, unless he desires a
2 rearraignment.
3 MR. BADGER; Your Honor, the government would ques-
11
4 tion the validity of his plea of guilty at the last session
5 and would urge the court to inquire rrom the defendant him-
6 self as to why he has plead guilty and upon what facts he
1 is basing his plea of gUilty, because unless he changes his
8 basis, factual basis, for his plea or guilty, the government
9 would urge the court to not accept his plea and set the case
10 for trial.
THE COURT: Well, that's why we continued it until
12 this date, and I think I will inquire of the defendant, but
13 I wanted to look at the document, and you have furnished a
14 copy to defense counsel. My recollection is that the defend-
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ant stated that his testimony was, his belief, that this
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contract was 1n fact signed by Roger S. Mullins what he
plead guilty to was the fact that he made this
loan and acquired, the money for work, a portion of which had
already been performed, so that in substance under the law
there would not be a valid meChanic's lien.
Did I understand your prior testimony correctly,
Mr. Price?
MR. PRICE: Yes, sir, you did.
MR. BADGER: Your Honor, could we have the defend-
ant placed under oath again?
ALL..EN WARe
OFFJcrAL COURT REPOJ{T.!.R FEDEJtAl" 'COURT
RI S-4377
DALLAS, TEXAS 75221
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THE COURT: Well, I am not satisfied that -- will
PRICE: Yes, I do.
into a contract with Roger S. Mullins for improvements on
Now, the indictment charges, as I read it, that
Yes. THE COURT:
1
Would you raise your right and the clerk
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(Sworn.) I
THE COURT: All right. I want to be entirely sat- f
recall the advice, of course, that I -- of your rights that
I gave you when you Tllere arraigned and the advice that
I gavel
>
you when you were placed under oath before, that since you
administer the oath?
that if you should later Change your plea any testimony you
isied before I accept your plea, Mr. Price, and you will
are under oath in the record in the presence of your counsel,
ment the testimony could form the basis of a prosecution
stand that, do you not, sir?
give this morning could not be used against you in this
criminal prosecution or a civil prosecution or anything,
save and except that in the event of perjury or false state-
you give me the please, OT a copy of the indict-
your home at 3302 Reynolds Avenue, and as I understand your
ment, Mr. Badger? I have the original.
your false statement to the bank was that you had entered
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OP"FICIAL COURT REPORTER. FE.OI!RAL. COURT
RI 84377
TI!XAS 75221'
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1 statement at the arraignment it 1s your statement that the
2 signature on this contract contains the signature or signing
3 purporting to be the signature of Roger S. MUllins, and it is
4 your testimony that Mr. Mullins signed this contract and so
5 that therefore it was not false when you stated that you had
6 entered into a contract with Mr. Mullins?
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HOPKINS: May I say Your Honor?
THE COURT: You may.
MR. HOPKINS: Your Honor, we are not denying a
10 false statement was but we are merely saying that other
11 people were involved when these statements were made. The
12 statement was made, but the money never reached Mr. Price's
13
hands. He made the statement, but they had never really
14 entered into an agreement for that money. He made a false
15 statement.
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THE COURT: Well, what was his false statement?
.
MR. HOPKINS: The false statement was that he had
18 entered into a contract for the loan of that money, which he
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hadn't. He and Mr. Mullins had agreed to fix the house, or
what have you, before the -- prioF to the borrowing of the
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money. They were trying to borrow the money to payoff some
22 other loans. According to the statute, this would be a false
23 statement and would be in violation.
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THE COURT: Well, do I understand from your state-
do I understand, Mr. Price, that you borrowed this
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R184377
DALLAS. TEXAs 715221
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1 money on the representation that it was to be used for future
Z improvements on your home when in fact it was going to be
3 used to retire prior indebtedness, is that correct?
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MRe PRICE: Yes, sir, that iS
3
Your Honor.
THE COURT: All right. And the money, some eightee,
hundred and fifty I believe; was advanced and did gOI
to retire prior indebtedness?
8 PRICE: Yes, sir, Your Honor, I think to the
9 best of my knowledge. I don't remember exactly how many
10 loans, but I know it was at least two, maybe three.
11 THE COURT: And did you not aleo state on arralgn-
12 ment that you had some checks, that a portion of it was
13 spent?
MR. PRICE: Yes, that was my recollection. On
15 several r had quite a few O.D. checks there at the
,
16 bank that had been authorized by the bank vice-president
the 17
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there, and he was to catch the checks up.
THE Well, on the prior loans that you had
made that the proceeds of this loan were used to pay those
prior loans, you had gotten the use and benefit of those
prior yourself?
PRICE: Yes, sir, Your Honor, r did.
THE COURT: And those were debts and legal obliga
24 tiona that you had at that time?
MR. PRICE: Yes, sir, Your Honor, they were.
ALL.EN WARD
OFFICIAL. COURT f;!l!:POATJIt FeDERAL COURT
Rr 84377
OAL.LAS, TEXAS
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THE So it's clear 1n your mind and it's
your statement that your offense here was in falsely repre-
senting to the bank by virtue of this contract and obtaining
money for your use in paying the prior indebtedness, the
falsity being that you represented that it would -- that the
money would be used for prior -- I mean for future improve-
mente on your home, when in fact it was used for prior -- to
payoff prior legal obligations, is that correct?
PRICE: Yes, sir, Your Honor, with the con-
currency or an agent of the 'bank, yes, sir.
THE in other words, you are saying
12
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that the agent of the bank knew that it was
not using the money for future improvements?
that you were
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MR. PRICE: Yes j sir
J
Your Honor, he did.
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THE COURT: it's your testimony that the agent
16 of the bank then used the proceeds of the loan to payoff
Ii prior indebtedness to that same bank?
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MR. ,PRICE: Yes
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sir, Your Honor, it is.
THE COURT: based on the indictment and that
testimony, I am going to reject your plea of guilty and I
will enter a not guilty plea on your behalf and set the case
for because in that context I do not think that a
factual as required by law, has been established to
support your plea of guilty, and therefore the court will
enter a plea of not guilty on your behalf, and I will set the
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COURT REPORTER Ff;CERAL. COURT
R184377
OAL.LAS. TeXAS 7S221
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case for -- it could be either March 1st or March 8th,
Mr . Badger.
MR. BADGER: Your Honor, I think that March the
8th would be a better date 1n order to get the case prepared
adequately for trial.
THE COURT: All right. Mr. Hopkins, is March 8th
an agreeable date with you?
MR. HOPKINS: No, sir, Your Honor. I will need a
little more time, an additional week, ir possible.
THE COURT: Well, I think that the problem is our
juries that month are March 1st and March 8th, and I will
have to look at my schedule. I think that my schedule calls
for me to be in Amarillo the following week.
MR. BADGER: Your Honor, might I ask? Does the
defense desire that this a jury trial? That's what it.
will be, unless they waive it. Do they desire it to be a
jury trial, or is it possible that this would be a trial
before the court?
MR. HOPKINS: I would think that this would be a
trial before the court.
THE COURT: Well, if that's the case, I certainly
don't want to say anything that -- Mr. Price has a right to a
jury trial, as you know -- and I don't want to say anything
that would indicate that he is being prevailed on to try it
without a jury.
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OFFrCIAL COURT RI!!:'PORTE.R! COURT
R18.4377
TI!XAii 71522\
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MR. HOPKINS: I think that the technical points
2 involved
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we would prefer to have it before the court.
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THE COURT: Why don't we set the case, then, for
4 March 15, 1976, at 9=30 a.m., and counsel can get
5 together and see -- work out perhaps any -- some discovery
6 problems and whatever needs to be done?
7 BADGER: I don't anticipate any discovery
8 problems at all, Your Honor.
9 THE COURT: All right. Now, the defendant is
10 presently on bond.
11 Mr. Badger, is it agreeable with the government
12 that I continue the bond?
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MR .. BADGER: Yes, Your Honor.
THE COURT: All right. Mr. Price, I will continue
15 your bond and order to be and appear here on March 15,
16 1976, at 9: 30 a.m. for trial.
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MR. HOPKINS: Thank Your Honor.
THE COURT: All right. You may be excused.
(Adjournment until March 15, 1976)
ALLENWARC
OFFICIAL COURT RI!:f10RTER FEDERAL COURT
R18-4377
O"'1-L"S, TEXAS 75221
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DALLAS DIVISION
7 vs.
NO. OR 3-76-4
8 JOHN W. PRICE
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TRANSCRIPT OF PROCEEDINGS
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BE IT REMEMBERED that on the 15th day of March, 1976,
before the Honorable Robert W. Porter, United States District
Judge, the following proceedings took place in the above-
APPEARANCES:
MICHAEL P. CARNES, United States Attorney,
Fort Worth, Texas,
By Mr. A. H. Badger,
MR. JAMES P. HOPKINS, Dallas, Texas, and
ME.. CLEOPHUS R. STEELE/) JR.,
ALLEN WARD
OFFICIA.L COURT ItEPORT"2:ft: - FEDEftAL COURT
RI 8-4377
CAL.L.AS. TEXAS 7:J22 r
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PRO C E E DIN G S
THE COURT: Now, do I understand, gentlemen, that
4 there has been a change of plea?
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MRa BADGER: That is correct, Your Honor. I have
been advised by Mr. Hopkins and Mr. counsel for
Mr. Price, that they desire to enter a plea of guilty this
morning, and we are prepared to rearraign the defendant on
the charge.
10
THE COURT: All right. Is that correct,
1X Mr. Hopkins?
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MR. HOPKINS: Yes, sir, Your Honor, that is correct)
I have advised the defendant of his rights and asked him
what his plea should be, and he has advised me that he
wishes to plead
THE COURT: All right. You may proceed to read
the indictment and advise the defendant his maximum
penalties, Mr. Badger.
MR. BADGER: Mr. Price, you have been indicted in
a federal criminal indictment by the grand here in
Dallas in Criminal Number which reads as follows:
Grand Jury charges:
liOn or about May 1, 1974, at Dallas, Texas, in the
Northern District of Texas, John Wiley Price,
knowingly did make a materially false statement to the
ALL.EN WARD
QFFICiAL c:::;OURT RI!:PORTER i='ECERAL. COURT
R18.4377
DALLAS. TEXAS 7l:l22\
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Guaranty Bank, Dallas, Texas, a bank the deposits of which
were then and there insured by the Federal Deposit Insurance
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Corporation, for the purpose of influencing the action of
bank to approve a home improvement loan requested by the
defendant from said in that John Wiley Price presented
to said bank a contract for home improvements purportedly
entered into by defendant with a Roger S. Mullins who was to
perform certain improvements on defendant's home located at
3302 Reynolds Avenue, Dallas, Texas, when in truth and fact,
as Wiley Price well knew, he had not entered into a
contract with a Boger S. Mullins for home improvements at
the defendant's home at 3302 Reynolds Avenue, Dallas, Texas.
UA violation of Title 18, United states Code,
Section 1014.
IfA True Bill. It
Signed by the foreman of the grand jury and the
United States Attorney.
Mr. Price, you are advised that, if you should
be convicted of this one-count indictment, the maximum punist
ment would include a fine of up to five thousand dollars and
confinement in a federal correctional institution of up to
two years or both.
Now, we have your age as being twenty-five. Is
24 that correct, sir?
25
MR. PRICE: Yes, it is.
AL.LEN WARD
OFFICIAL COURT f"EDERAL cOURT
RI84377
PALLA-6. TEXAS 75221
c ----r--=== ;;::
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1
MR. BADGER: Now, because of your age, if you are
2 convicted, the court could sentence you under what is known
3 as the Youth Corrections Act. If the court chooses to sen-
5
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tence you under the Youth Corrections Act, the maximum PUniSh[
ment would be a six-year sentence broken down into two phases.
the first phase of which would include an indeterminate sen-
tence of confinement not to exceed four years, and that would
8
be followed by two years o supervised release. Do you
9 stand the Youth Corrections Act?
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MR .. PRICE: Yes.
BADGER: And you understand that that is the
judge's choice, if you are convicted, whether to sentence
you under the statute or whether to sentence you under the
14 Youth Corrections Act? Do you understand that?
15
MHo PRICE: '" Yes.
16
.MR.. BADGER: You are advised that you have the
17 right to enter a plea of guilty or not gUilty, and if you
18 enter a plea of not gUilty, this case will be set for trial
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by a unless waived by you and your counsel. Do you
understand that?
MRo BADGER: Do you understand the indictment?
MR. PRICE: Yes.
MR. BADGER: Do you understand the maximum punish-
ment?
ALLEN WARD
CfE'r'JC;IA.1. COURT R.E!;l'gFi:'J'l!:ft .. FEOS:RAL. COURT
RI a4377
DALLAS. TEXAS 75221
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PRICE: Yes, I do.
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MR. BADGER: You are further advised, Mr. Price,
that it you should enter a plea of guilty today you will be
waiving your right of a trial of the facts this case, you
will be waiving your right to confront the Witnesses against
6
and you will be waiving your right against self-
1 incrimination. Do you understand that?
8
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MR. PRICE: I do.
THE COURT: All right. I believe, Mr. Price, that
10 this is the third hearing and arraignment we have had in
11 case. I still want to inquire of you of a number of things.
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You do recall when -- or do you recall when you were orig-
inally arraigned the advice of rights that I gave you,
including the that you have a right to a pUblic and
speedy jury trial in this district and you have the right to
be represented by your counsel you have the right to
summon any witnesses on your behalf and that the government
has the burden of proving your guilt beyond a reasonable
doubt? Do you understand that?
PRICE; Yes, Your I do.
THE COURT: And you do understand the nature of the
charges stated against you and the maximum penalties to which
you could be subject?
MRc PRICE: I do.
THE COURT: All right. Having 1n mind those
Al..LEN WARD
OFFlCIAL. COURT REPORTER COURT
R18.4377
DALLAS. TEXAS 75221
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1 how do you plead, gUilty or not guilty?
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MRQ PRICE: I plead guilty, Your Honor.
THE COURT: All right. Raise your right hand,
4 please, and the clerk will administer the oath.
S (Sworn.)
could be used against you to form the basis of prosecution
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THE All right. First, Price, and I
think that I have advised you of this before, but I want to
advise you that since you are under oath on the record in the
presence of your counsel any testimony you give this morning
could not be used against you in the prosecution of this
case or in any other civil or criminal prosecution, except
that in the event of perjury or false statement your testimony
I
14 against ynu for perjury or false statement. Do you under-
15 stand that?
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THE COURT: All right. Are you certain that you
want to waive a jury trial confess the charge against you
as stated in the indictment?
MR. PRICE: Yes, I do.
TEE COURT: All right. Has there been any plea
agreement that you know of reached between you and the
government or by your attorney on your behalf and the attor-
ney for the government?
PRICE: No, sir, Your Honor. No, sir, Your
ALLEN WARD
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R18-4377
TEXAS 75221

to_ : ..
1 Honor.
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THE COURT: All right. Is that your understandingJ
3 Mr. Hopkins?
4 MR. HOPKINS: That's my understanding.
5 THE COURT: All right. Is that your understanding,
6 Mr. Badger?
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MR. BADGER: That is correct, Your Honor.
THE COURT: All right. Let me ask you, then,
9 Mr. Price. Has any officer, agent or attorney for the
10 government promised that you would get a lighter sentence or
11 probation, if you should plead guilty?
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MR. PRICE: No, sir.
THE COURT: Has anyone, whether connected with the
government or not, offered or suggested or promised to you
that you would get a ltghter sentence or probation, if you
should plead guilty?
MR. PRICE: No, sir.
THE COURT: All right. Do you make the guilty
plea of your own free will and accord without any force,
threats or pressure of any kind?
PRICE: Yes, sir.
THE COURT: Do you plead guilty solely because you
23 are guilty and for no other reason?
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THE Are you at this time under the
ALL.EN WARD
OFFICIAL. coURT R&pORTf;R .. Ff;:DJ;RAL COURT
RIS-4377
DALLAS. TEXAS 75221
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1 influence of ar-y drugs, narcotics OT alcoholic beverages?
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PRICE: No, sir, Your Honor.
THE COURT: Mr. Hopkins, in opinion
3
is the
4 competent at this time and is his guilty plea vol-
5 untarily made?
6
HOPKINS: Yes, sir, Your Honer. We have dis-
7 cussed the allegations against defendant and we have come
8
to the conclusion that he is guilty, he made that ccnclu-I
9 sion .freely on his own.
his gUil-r;y plea, is that correct?
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THE COURT: All right. And I take it, then, that
his plea of guilty is consistent with advice to
based on the facts that he has stated to you as the basis fori
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HO?KINS: That 1s Your Honor.
THE COURT: A:l right. You may present the factual
16 basis.
17
MR. BADGER: The factual basis to support the plea
in this case is as follows: On 1, 1974, John Wiley
19
Price, defendant, made a false statement to the Guaranty
20 Bank in Dallas, Texas, a bank the deposits of which were then
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and the:i."e insu.red ";)y the F'ederal Deposit lns;;.rance Corpora-
tion in that he presented a contract with a Roger S. Mullins
to a of said bank fer improvements to be done onl
a owned by Price. Price presented this contract for i
the purpose of influencing the loan officer's decision to
ALLEN WARD
COUNT REPORTIr'R - COURT
R18-4377
DALLAS. TI!:XAS 75221
36
1 act favorably on Price's application for a home improvement
2 loan. Price then knew that the contract was false and never
3 entered into by Price with a Roger S. Mullins to make home
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4 improvements on his house. Based on this false contract, the
5 loan officer granted Price a loan for $1,850.00 which Price
6 never repaid. The l o a ~ was ultimately written orr as a total
7 loss by the bank.
8
THE COURT: All right. Mr. Price, is that an
9 accurate ana correct statement of the facts involved in the
10 offense with which you are charged?
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THE COURT: All right. Mr. Hopkins, are those
13 facts consistent with the facts heretofore stated to you by
14 the defendant?
15 MR. HOPKINS: Yes, sir, Your Honor, with some
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16 interpretation, they are.
17
THE COURT: All right. And it's on the basis of
18 those facts that Mr. Price's gUilty plea is consistent with
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your advice to him, is that correct?
MR. HOPKINS: That's right, Your Honor.
THE COURT: All right. Mr .Price, based on your
. I
22 plea of guilty and the factual basis established in the
23 record, the court will find and adjudge you guilty of the
24 charge against you, as stated in the indictment.
25 I believe that in connection with a prior hearing
ALLEN WARD
OFFrcEAL. COURT Rf;PORT.ER 'EO!;RAL cOURT
R18-4377
OAI.LAS, TnAS 7522'
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I already have a presentence investigation report. I do not
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Mr. Hopkins, if you had an opportunity to look at a
.3 copy of that from the proba.tion officer. you seen it?
HOPKINS: Yes, sir, I have, Honor.
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THE COURT: All right. I have net reviewed it --
I will -- and if the date is satisfactory for everyone set
the sentencing for 9:00 a.m. this coming Friday, March 19th.
Is that -- or we can do it another morning this week, if
there is a date that 1s more convenient.
MRA BADGER: Any date is fine with the
Your Honor, whatever to Mr. Hopkins and Mr.
MR. HOPKINS: Your we like to do it
tomorrow morning, would be the best time.
THE COURT: All right. I do that. I will set
it then. I have another matter. It may take a few minutes,
depending upon the status of a witness in this case. Perhaps
we can take this matter first, but I will set it at 9:00 a.m.
tomorrow morning, which is March 16th.
Mr. Price is presently on bond, is he not?
MR. BADGER: That is correct, Your Honor. We have
no objection to the bond continuing.
THE COURT: All right. I will continue your bond,
Mr. Price, and order to return here at 9:00 a.m. on
March 16th for sentencing.
Is there anything further, Mr. Badger?
ALL.EN WARD
OFFICIAL COURT REliORTER FEOiii:RAL.. COURT
RJ 5-4377
DALLAS. TE:XAS 73221
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MR. BADGER: No, Your HonoT, that's all.
THE COURT: Or Mr. Hopkins?
MR. HOPKINS: No, sir, Your Honor.
THE COURT: All right. We will stand in recess.
MR. HOPKINS: Thank y o u ~ Your HonDr.
THE MARSP....AL: All .rise.
(Adjournment ~ n t i l March 16, 1976)
ALLEN WARD
O,.ltlCIAL COURT RE:PORTE" FEDERAL. COURT
R180:377
DAL.LAS, TEXAS 71;221
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DALLAS DIVISION
7 VB. NO. CR 3-76-4
8 JOHN W. PRICE
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BE IT REMEMBERED that on the 16th day of March, 1976,
before the Honorable Robert W. Porter, United States District
Judge, the following proceedings took place in the above-
APPEARANCES:
MICHAEL P. CARNES, United states Attorney,
Fort Worth, Texas,
ME." J Al.\iES P. HOPKINS, Dallas, Texas, and
MR. CLEOPHUS R. STEELE, JR. J
ALLEN WARD
OFF'tCIAL. COUAT Rlii:POR'r'EA ~ FE:CERA.L. COURT
R184377
DAl-l-AS, TEXAS 75221
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PRO C E E D I N G S
THE C O u ~ T : Good morning, gentlemen. I have two
4 matters this morning. The first item on the sentencing
5 docket is Criminal 3-76-4, United States versus John W.
6 Price. The second item is -- second case -- is First
7 National Bank versus Farm Products, et al. 1 will handle the
8 Price matter first.
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Is the government present and ready?
MR. BADGER: Yes, Your Honor.
THE COURT: All right. Mr. Hopkins, is the
defendant present and ready for sentencing?
MR. HOPKINS: Yes, sir, Your Honor.
TEE COURT: All right. Is there any reason why I
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15 should not impose sentence at this time?
16 MR. HOPKINS: No, sir, Your Honor, but we would
17 like to make a statement to the court.
18 THE COURT: All right. Do you wish to make a
19 statement on behalf of Mr. Price and i ~ he wishes to make a
20 statement on his own behalf?
21 MR. HOPKINS: Your Honor, I would say that this
22 is an unusual case, and if you have looked at the facts I
23 can't see where there is any criminal intent. As the facts
24 show, Mr. Price never received any of the monies that went to
25 his benefit. The monies were manipulated around him to the
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bank. He did receive the benefits of the but he
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never received any monies per se. I
Mr. Price since that time a very
minded individual. He has become on the boara of the c
I
5 Dallas for condemnation. He has become one of the advisers
6 on the YMCA. He has also become one ot" the workers in mat'ly
1 of the campaigns at this time.
8 Mr. Price, I am sure, did not feel that he was
9 breaking the law at the time that these incidents took place
3
10 and I don't think it would serve any purpose at this time to
11 incarcerate Mr. Price. I think that it would be best for
12 the community and for the penal system as a whole that
13 Mr. Price be allowed to remain with society and to conduct
14 the business as he sees that it is the best of his interest.
sgl
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MR. PRICE: Honor, I would respectfully ask
16 the court that they take into consideration all of the facts
17 that have been stated by my attorney here and grant every
18 possibility the court can see in granting probation.
19
MR. HOPKINS: Your Honor, Judge Steele would also
20 like to make a statement.
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22
THE All right.
MR. STEELE: Your Honor, if I I would like to
23 say on behalf of Mr. Price that I have known him some six
24 years at least. When I was employed by the Dallas Legal
25
Services Founda.tion years ago, Mr. Price would be on or
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about the premises at that time. He was at that time or at
least one time employed by the District Attorney's Office in
the Drafting Department, and he would be in and out of the
Records Building, and we would see him around Legal Services
at times and came in contact with him quite a bit and got to
know him at that time, and when Mr. Hopkins and I left Legal
Services and went into private practice we employed
Mr. Price and utilized his services and his knowledge in the
drafting field and his knowledge and ability in researching
records and his general investigative knowledge to assist us
in our practice. Since that time, I have been appointed
Justice or the Peace, and I have employed Mr. Price in my
court. I know him to be a good worker and a reliable worker.
I donJt think at the time that this particular incident
as MrD Hopkins has indicated, he recognized the
"
fact that there was criminal liability inVOlved. He looked
at it as a civil type of matter which would carry civil
penalties, if it ever reached a lawsuit and it wasnJt
until very late that he recognized the criminal aspect of it,
and because of that snd because by the time that we found out
about it it was too late to curtail it. I know that
Mr. Price has a son. He 1s presently separated from his wife
or divorced, one or the other. I know that he supports that
son of his and he meets his obligations well in that regard.
I do hate that the situation and circumstances came down as
AL.LEN WARD
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1 they did. I think that all Hopkins and I can do was to

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advIse him" as we did in this particular instance
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and I do
feel that, if the court would take into consideration these
facts, it would be in Mr. Pricets best interests the
community's best interests that he be treated under the
Juvenile Offender Act" as I have heard the court mention
before, placed on probation under such act" if that's
possible.
Thank you
s
JUdge.
THE COURT: All right Do you have anything fur-
11 Hopkins?
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HOPKINS: Yes, sir, Your Honor9 We would like
to challenge the report of the probation office as to the
offenses, prior offenses, prior arrests, theft by false
pretext and theft over, third countsa
You are referring to the item on
Page 3?
MRG HOPKINS: Yes, sir.
THE COURT: And you say what, you challenge the
accuracy of that?
MBa HOPKINS: Yes" sir, we do.
THE COURTg Well, as the presentence investigation
reports shows with regard to that offense, the disposition
was not guilty.
MR. Yes, but Mr. Price has never
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1
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been to trial on anything. This is his first time in trial.
THE COURT: All right. Well, I don't think that
3 that is material 1n the sense that, even if he were and were
not 4 found not guilty, I would not take that into account, because
5 as I view that, if that were the case and he were found not
6 guilty, that exonerates him.
7 MR. HOPKINS: If you feel that way, Your Honor, we
8 have no problem with it.
9
THE COURT: If that is not an accurate statement,
10 we can have the probation office check the record just so as
11 a matter of factual correctness the presentence investigation
12 report will be accurate. I don't take -- I don't take
13 arrests into account when they don't result in convictions,
14 and I don't take dismissals into account, because I think in
15 law that does not constitute any kind of a final record, so
16 I donlt take those matters into account.
17 Are there any other matters in the presentence
18 investigation, Mr. Hopkins, that you wish to comment on?
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MR. HOPKINS: No, sir, Your Honor.
THE COURT: Well, I have considered that. I have
21 considered this case. I am familiar with Mr. Prieets back-
22 ground I think, both from the information in the
23 presentence investigation report and from that's
24 available generally to the public. I have thought a good
25
deal about this. Mr. Price is obviously an intelligent
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1 person and articulate. My view> is that the offens
2 is a serious offense measured by contemporary standards in
3 this court. So if you will please Mr. I will
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sentence.
It's adjudged that the defendant is hereby
committed to the custody of the Attorney General, or his
authorized for imprisonment under provisions
of 18 United States Code,Section provided however
that any period in excess of six months is suspended and the
defendant is placed on probation or a period of three years
upon his release from pursuant to 18 United States
12 Code Section 50l0(a) and Section 3651. The court finds that
13
14
the defendant was twenty-five years of age at date of convic-
tion is suitable for handling under the Federal Youth
15 Corrections Act. I wiil stay the execution of the sentence
16
of imprisonment for a period of three weeks and permit the
17 defendant to report directly to the institution at his own
18 expense, and to that end the defendant is ordered to report
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to the United States Marshal in thie building at 10:00 a.m.
on three weeks from tOday, which will be April 6th, at which
time he will be be given the aesignation of the institution
to which he is to report, and the recommendation that I will
m.ake to the Bureau of Prisons on the appropria.te form is Fer
24 SeagOVille, Texas. And a condition of the probation is that
25 the defendant make restitution of the $1,850 set forth in the
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, 1 indictment in this case
J
to which he plead guiltyv
2 (Adjournment until March 33., 1976)
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IN THE DISTRICT COURT OF TEE UNITED STATES
DALLAS DIVISION
6 UNITED STATES OF .LU\iERICA
vs"
8 JOHN \'1 .. PRICE
9
NO. CR 3-76-4
10
11 BE IT REMEMBERED that on the 31st day of March,
12 before the HonoTable Robert W. Porter, United states District
13 JUdge, the following proceedings took place in the above-
14 styled and numbered cause:
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<..
APPEARANCES:
MICHAEL P. United States Attorney,
Fort Worth, Texas,
MR" J Ai"v1ES A" JOHNSTON, Dallas" Texa.s,
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PRO C E E DIN G S
THE COURT: This is Criminal Number United
States versus John w. Price, and it's set as I look at the
motions on the defendant's motion to withdraw the guilty
plea. There is also a motion for a new trial which we can
discuss.
Is the government present and ready, Mr. Badger?
MR. BADGER: The government is ready, Your Honor.
THE COURT: All right. Mr. Johnston, is the
defendant present and ready?
MHo JOHNSTON: We a.re ready, Your Honor.
THE COURT; All right. You are proc eeding on your
motion to withdraw the guilty plea?
MR. JOHNSTON: That's correct, Your Honor.
COr
THE COURT: All right. You may proceed.
MR. JOHNSTON: We would call at this time Leon
Gauthier.
MR. BADGER: Your Honor, we are going to ask that
the witness rule be invoked and all witnesses be excluded
from the courtroom.
THE COURT: All right. Will everyone who intends
to testify please come inside of the bar and raise your
right hands and the clerk will administer the oath?
(Witnesses sworn.)
Al.L.EN WARD
OPP'IC1AL. COURT I"'EDIRAL. COURT
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DALL.A51. TEXAS I
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THE COURT: All right. you all know the
2 meaning of the rUle, I think, that has been so if
3 you will wait in the witness room until you are called and
4 do not discuss your testimony with anyone, except the attor-
5 neys in the case.
6
MRo BADGER: Your Honor, at this point, as I
7 Mr. Gauthier is a fact witness to the offense
8 for which the defendant is charged. Now, we are going to
9 object to trying this case today on this motion. I don't
10 think that is the issue before the court. The issue before
11
the court is whether or not Mr. Price was misadvised and is
12 entitled to withdraw his plea of guilty. We would object to
13 a trial of the merits of this case at this time, which is
14 effectively what the defense is starting to do by calling a
15
fact witness, Mr. Gauthier. Now, there are allegations in
16 his motion about Mr. Gauthier knowing something, but that's

17 an allegation that is a factual matter to the offense itself
18 at this point is irrelevant. It's not the issue before
19 the court.
20 THE What is the purpose of Mr. Gauthier's
21 testimony, Mr. Johnston?
22
MR. JOHNSTON: Your as the court knows, the
23 defendant has plead guilty to violation of Title 18, u.s.
24 Code, Section 1014, which 1s essentially a two-part statute
25 alleging first knowingly"making a false material statement
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50
to a bank and secondly with the intent to influence the
aetion of the bank upon the application.
~ m ~ BADGER: Excuse me, M r ~ JohnstonQ
Could we have Mr. Gauthier excused from the room
while we are going through this discourse?
THE COURT: All right. Step into the witness room,
Mr. Gauthier, and we'll call you when your testimony
MR. JOHNSTON: Now, Your Honor, it will be the
contention of the defendant here that he made and entered
his plea of guilty upon fa1uty understanding of the law in
the case, as the law waa related tc him by his attorneys,
and also that there was a Zaulty understanding of the facts
involved, as the U.S. Attorney related those facts to the
defense attorney at the time of the entry and the negotia-
tions and discussions between the attorney for the defendant
and the U.S. Attorney at the time, at the discovery stage
in this trial. Mr. Gauthier's testimony is relevant because
it relates specifically to the defense that the defendant
would have raise6 had he known that he had a defense. It is
our intention to show the court that the defendant had a
defense that was not raised because of faUlty understanding
of the attorneys in this case and of the defendant in this
case, and unless the U.S. Attorney is willing to stipulate
those facts, then we believe that Mr. Gauthier is relevant
to that point.
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DAL.L.AS. TEXAS 7522'
52
Do you have a copy of the indictment THE
t
or does someone have a copy of the indictment and the factual
1
3 basis?
As you knowJ Mr. I declined to accept a
5
plea of guilty on prior prior to the last at
6
which I did accept the guilty plea based on the testimony of
the defendant under oath that he in the second -- he was
8
originally arraigned and plead not guilty. It was set for
9 trial. He asked to be rearraigned and undertook to plead
10 gUiltYJ and I declined to accept the guilty plea and entered
1 a not guilty plea for him and set it again for trial, and on
12
the second trial date he asked to be rearraigned and enter a
13
gUilty plea, and on the second hearing, if not the th1rd
J
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perhaps the third -- the record will show -- he 6tated sub-
stantially what you stating now, that the officer at the I
bank was aware of but the allegation in the
as I read it, and the factual basis that Mr q Price testified
18
to on the last when his guilty plea was
19
had nothing to do with whether the money represented prior
20
indebtedness or a portion of the loan represented prior
21
indebtedness but whether or not he had entered into a con-
zz
tract with Roger S. Mullins to perform improvements, and
Z3
that's the allegation in the indictment. And as I understand
24
what was testified tO
J
in fact Roger S. Mullins did not sign
25
the so that was the portion of the applieation and
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did not state in fact that some of the work on the house had
that the bank in fact knew that the work had been done on the
assistance of counsel in this cause.
We
I
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guilty, I
,
r
He thought that was in fact the illegal
i
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he was charged with, and that's what he plead guilt act that
te. Mr. Gauthier will testify, if I understand his testimon
state that the defendant understood that he was pleading
stipulate? What is the fact that you will contend to elicit
MR. Your Honer, for let me
already been done.
THE COURT: what fact is it you want to
home, that that oid not induce them to give him the home
from the witness?
he was contacted by the attorneys for the defendant in
his bank when he worked for the bank in that situation, and
which is certainly relevant to the competency and effective
various other details along those lines, Your HonOT.
improvement loan, that in act it was a home improvement loan
that it's relevant to show that, he will also testify that,
payoff prior existing loans that the defendant had with the
purposes of inducing a home improvement loan a contract that
basically in only; that the bulk of the money went to
baD-k and not to any contractor for the home improvements.
the discovery stage and prior to entering the plea of
guilty to the offense because he submitted to the for
He will also testify that that's the custom practice in
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1 the accompanying papers that in ract was not true but was
2 falsified, and I don't know what the testimony of
3 Mr. Gauthier ,may add to that. As I understand, in establish-
4
5
ing a factual basis for the guilty plea, the
defendant under oath at that time was that the contract was
6 not executed by Roger S. Mullins. If I am incorrect in that,
7 we will let the record reflect whatever it in fact reflects
8 on the prior hearing.
9
MR. JOHNSTON: Well, Your Honor, of course, I was
10 not there and cannot speak to what actually occurred at that
11 point, although I can offer testimony to the court at a later
12 time as to what took place before the hearing.
13
THE COURT: Well, whatever took place here,
14 Mr. Ward has down. We can transcribe it exactly. And so
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far as any or pleas or anything, as I understand
there were none, and in fact it was testified under oath when
the gUilty plea was accepted that there haa been no plea
agreement or plea bargaining between Mr. Price or on his
behalf by his attorneys with the government, and obviously
from the record, having declined to accept a plea 1n
the second hearing, I ascertained to my satisfaction, based
on the testimony under oath at the third hearing, that there
was a basis for it.
Now, I might make this observation. I am -- if
25 Mr. Gauthier, as I understand, the gentleman or officer
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1 at the bank at the time with whom the defendant dealt, and I
2 don't know what the law is on what statuE that might put him
3 in if he testifies under oath that he accepted a loan applic
4 tion and applied funds to prior indebtedness when the (-- .
'-.... .
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application stated it was to be for a home improvement loan,
but in the event that that puts him in jeopardy, r think he
ought to be advised before he testifies 50 that -- I don't
know if it does or not, but I would think that in an abundanc
of precaution for his protection that that ought to be
explored before he testifies as to what he knew prior to the
time that the loan was actually made, if the purpose of the
loan on its face was to -- was for a home improvement loan.
MR. JOHNSTON: Your Honor, Mr. Gauthier is here
14 under subpoena from the defendant and is not a voluntary
15 witness in that respect. If the court wishes to caution him
<>
16 in any way, the defendant certainly has no objection.
17
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THE COURT: Well, I certainly will. I think he is
entitled to understand that, if he feels that any testimony
he may give may in fact incriminate him, that he has a
constitutional privilege not to testify.
MR. JOHNSTON: Your Honor, let me say that as I --
22 as I see it, the thrust of this hearing in part is to show
23 that at the time: of the third. hearing, when the defendant
24 changed plea from not guilty to guilty, that he was unde
25 some duress and under some misunderstanding, and I think tha
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Rl B4317
CALL.AS, TEXAS 7e2Z1
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55
1 the factual resume itself lends itself to that mlsunderstand-
2 ing and as to ambiguities in its own wording. It says for
3 example that Price knew that the contract was false, and
4 Mr. Price believed by that that it meant that the contract
5 stated that this was work to be done when in fact it was
6 work that had basically already been done.
7 THE All right. But that statement that
8 you referred to again this is all a matter of
9 goes on to state that the contract was false and never
11 improvements on his house. And again --
12 MR. BADGER: That!s the Your that
13 he hadn't entered into a contract.
14 THE COURT: Well, that's as I understand it, and
15 that's the factual basis I accepted. And again I simply want
(l,
16 to point out, I will let you put on kind of testimony
17 that you want because it's obvious from the record up to this
18 point that I had some reluctance 1n this matter until
19 Mr. Price unequivocally testified under oath that this was
20 true and correct.
21
MR. JOHNSTON: Your Honor, I don't want to state
22 that our entire basis for this motion rests on Mr. Gauthier's
23 testimony. We will also offer testimony to show at the time
24 that Mr. Price made the unequivocal acceptance of the factual
25 resume that he was under some duress to do so.
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THE COURT: Well, under duress in what respect?
MR4 JOHNSTON: Well, in the respect that his
sttorney was unprepared to go to trial, advised him that he
was unprepared to go to trial, that his attorney sought a
change in the factual resume from the U.S. Attorney, that the
u.s. Attorney refused to make that change in the factual
resume, and that the defendant was advised by his attorney
that, if he didn't enter his plea of guilty, his chances of
going to prison were far greater. And at that point,
he had come to trial on that day intending to enter a plea of
not guilty, his will was overborne to the point where he
entered his plea of guilty and accepted the factual reaume,
in fact knowing that it was wrong, in order to avoid the
harsh consequences of an unprepared attorney.
THE COURT: all right. I will let you put
on all of the testimony that you want to, Mre
because I have no desire to have a man plead gUilty to any-
thing that he is not guilty of. But I was contacted on the
Friday preceding the Monday that the case was set on and at
that time and would I accept a rearralgnment for him to plead
guilty on that day, and so I don1t really think, based on the
information given to me by the attorneys on both sides in the
case, that there was any intent on going to trial on Monday
when they appeared. And I simply point out that Mr. Price
was asked again at the third hearing if he understood the
WARD
gFf'ICIAL COURT REPORTER FED.RAL COURT
R184377
DALLAS, TEXAS 75221
57
(
1 charges against him and if he made the guilty plea of his own
l
2 free will and accord and he made it knowingly and understand-
3 ingly, that he was not offered or promised a lighter sentence
l
4 or probation by if he plead guilty, but he plead
5 guilty solely because he was guilty and for no other
6 and again that's sworn testimony in the record. And I don't
1 -- I think Mr. Price needs to understand, if he intends to
8 testify that he did testify under oath before and that
9 he was advised at that time that, while any testimony he gave
10 in accordance with the amendment to Rule 11 that you are
11 familiar with, any testimony he gave$ while it could not be
12 used against him in the prosecution of the charge for which
13 he was before the court, in the event of perjury or false
14 statement could be used against him to form the basis of a
15 prosecution for or false statement, and that is the
16 law, and he was expressly advised and asked if he understood
17 that, and he stated that he did. So--
18 JOHNSTON: Let me say one further thing, Your
19 Honor. As the court the standard for satting aside e
20 plea of guilty after the person has entered a plea of guilty,
21 is to correct manifest injustice. Another reason for calling
22
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Mr. Gauthier would be the of a I
60 that the court woula be aware that there was the
of a defense and that the plea of guilty itself, taken as
such, would create this manifest injustice) if it was allowed
AL.LEN WARe
OP':"ICIAL COURT REPORTER. FEDERAL COURT
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1 to stand.
2 THE COURT: Well, Illl -- you can go ahead -- I
3 will let Gauthier testify, but I am going to advise him
4 of his rights prier to the he testifies, anc if his
5 testimony is relevant to the issue on the withdrawal of the
6 plea, I won't consider it for that purpose, but I wonrt
1 limit the in any respect.
8
MR. BADGER: Your Honor, before we proceed with
9 the witness, I want to advise the court that it;s my under-
10 standing that at the first hearing; which was on January 23rd,
11 the defendant entered a plea of guilty, and the court did noti
l
12 kp-ow whether it could accept that plea of gUilty or not, and
13 the court set the case for February the 13th for sentencing
14 or other proceedings
15
16
THE COURT: -Right.
BADGER: depending on whether or not you
17 wished to accept his plea of guilty. At that there
18
19
20
was no plea of not guilty entered.
MR .. BADGER: And on February 13th he again re-
21 affirmed his plea of guilty. Not once has he ever said,
22 uJudge, I am not guilty. It Not once.
23
THE COURT: My recollection is incorrect, then. I
24 was thinking that he had pleaded not guilty the first time,
25 but I recall now that he did plead guilty, and I was reluctan
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then about the factual basis and set it for further proceed-
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ings in February, and at which time I rejected the guilty
plea and entered a not guilty plea for the defendant and set'!
it a third time. I
Well, the facts are whatever they are, and so you I
may proceed, Mr. Johnston. I
MR. Thank you, Your Honor. I
TEE COURT: I think Mr. Gauthier needs to be
9 advised.
ll.O I
MR. JOHNSTON: Let me also say, while we are wait-
III
12
13
ing for Mr. we would incorporate the transcript
oT those previous proceedings 1n this of which I
believe there are four, for purposes of the record in this
14 cause. There was a sentencing.
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THE COURT: All right. Give the court reporter
the spelling of your Mr.
All right. Mr. Gauthier, before you testify, I,
of course, don't know you are to testify to, but
bassd on some of the discussions on the record in here and
argwment of counse1
3
apparently you are going to, or it's
anticipated that you Will, testify to some facts as to the
application of the funds represented by this loan and your
knowledge of the I don't know, and I don't sit
up here knowing whet the statutes say loans made by
national banks or banKs the deposita of which are insured by
ALLEN WARD
COU,F:(T FEDERAL COURT
RJ S-4:377
CALLAS, TEXAS
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the FDIC; however., I think in fairness to you that you need to
be advised that you are under subpoena and that at any point
that you feel that any testimony you may give may incriminate
you that you are entitled to assert your rights under the
Fifth Amendment and not to make a statement-, understanding
that if it does put you in jeopardy that if you do testify
that anything you say could be used against you and further
that you have a right before you testify to consult with
counsel, and it you do not have counsel and cannot afford
counsel, the court will appoint counsel for you. And I
simply want to advise you of that so that,. without knowing
what the facts a r e ~ if there 1s a possibility that any knowl-
edge that you had or action that you took based on that
knowledge could ,put, ,you in jeopardy of any of the statutee.s
that you would be a d v i ~ e d of it before you testified.
ALLEN WARD
OFF1C[AL COURT REPORTER FECIii:RAL COURT
Rl 84377 .
DALLAS. TEXAS 7Sl!.l!.l
61
1
2 LEON JOSEPH GAUTHIER,
3 being first duly sworn, testified on his oath as follows:
4 DIRECT EXAMINATION
5 BY MR. JOHNSTON:
6
7
8
Q
A
Q
State your name for the record, please.
My name is Leon Joseph Gauthier.
Mr. Gauthier, you are here under subpoena from the
9
defendant, are you not?
10
11
A That I S correct.
Let me reiterate. Have you heard and understood
12 the jUdge's comments prior to your testifying here today?
13
14
15
A
Q
A
Yes.
How are you presently employed, Mr. Gauthier?
I am of the Interracial Council
16
for Business Opportunity.
17
Q And just for point of reference, what is that
18 council?
19
A That is a business consulting service which 1s
20 funded by the Department of Commerce to assist minorities
21 for going into business or expanding business.
22
Q Mr. Gauthier, have you ever been employed by the
23 Guaranty Bank of Dallas, Texas?
24
25
A
Q
Yes, I was employed by Guaranty Bank.
And for what period of time were you employed
ALLEN WARD
Of'P"lct .... L Re:PCRTER FEC,RAL .e:;:OURT
R184377
DALLAS. TEXA8 75221
62
1 by them?
2
3
A
Q
January of 1970 until October of 1974.
And were you employed at that bank on or about
4 May 1 of 19741
5
6
A
Q
Yes, I was.
Did you have occasion at that time, or approx-
7 imately at that time, to discuss with John Wiley Price the
8 possibility of a home improvement loan?
9
10
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12
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14
A
Q
A
Q
A
Yes.
Had you known Mr. Price prior to that time1
Yes, prior to May of 1974.
Did in fact he have other loans at the bank?
Yes, he did.
Now, did Mr. Price approach you about this trans-
15 a.ction?
16
A Yes, as I can recall, he did come into the bank
17 and discuss the home improvement loan.
18
Q Now, let me ask you in general terms what the
19
20
21
22
custom and practice is at your bank, as a banker in the bank-
lng industry, with the making of home improvement loans.
Could you tell the court in general what the bank expects
and what kind of paper work normally takes place?
23
A Well, generally a home improvement loan Is usually
24 a second lien note, where a first lien is being held by
25
another lender. On certain o c c a 8 i o n s ~ it can be a first lien
AL.L.EN WARD
OFFlt:[AL COURT MEPoR'TE!ri FEDERAL., coURT
RI 8-.4:;177
DALLAS, TEXAS' 75221
A D
1 But what we require on a home improvement loan is e
Z lien on that particular piece of property. on a home
3 improvement loan it that certain improvements or
4 repairs would be done to the property. We were looking at
.. 1
5 or we were looking at a loan with certain ingredients
J
number
8
'1
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one, the borrower, Whether he has the ability to repay 1
willingness to repay. We look at the security which the ban
will have in the event that the borrower does not repay the .
9 note. That security 1s representea by a lien on that partic-
10 ular piece of property. In addition to that lien, we always
Jl.l
12
13
try to have the documents processed by the title company anc !
ask the .title to issue us a title policy to represent
to the bank that that borrower had the rights and privileges I
14 to assign his interest in that property to the bank. As a
15 rough rule of thumb Bank, we required that the
16 borrower have a contractor to perform the renovations or
sgl 17
repair to that piece of property, so what we
18
19
usually did was notify the title company that we had
to make a home improvement loan for the borrower and
agreed I
give thel
I
20 title the borrower's name, the amount the
21 the terms of the loan, the interest this type of
22 information on the loan, ask the title company to draw up
23 the documents and issue the title policy, and when those
24 documents were drawn UP3 forwarded to us by the title compan
2S we at that time made the disoursements of the loan.
ALLEN WARD
OF'F'ICIAL COUR7 COURT
RI a.A377
DAI..LAS, TEXAS 7ea.21
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Q All right. Now, would it be fair to summarize frorn
what you have said, that the reason for having a con-
tract signed by a contractor is basically to establish the
mechanic's and materialmen's lien?
A That 1s correct. I am not an attoI'ney-; h.tt I
believe that that rule was established at the bank so that
we would have a contractor assigning his rights to'the
mechanic1s and lien on that particular piece
of property over to the bank. I think that the bank felt
that it might be questionable as to whether the borrower,
who is also the property owner, could actually in fact have
a mechanic's and materialmenls lien on the property.
Q Could the bank in its nermal practice
someone who wanted to do the work themselves, wanted to do
their own home improvements work?
- <l>
A In my past experience, I have had the experience
where the borrower may, being a handy man, being a carperter,
plumber or something in that nature, wanted to save some
rooney, and he decided that he would like to do some of the
work or all of the work. The didn't really care too
much as to who the subcontractor was, _bUilding fifty percent
of a house where a carpenter, plumber, electrician would be
hired, as long as we had in effect a general
If' the customer, being a subcontractor, was able to work out
an arrangement with the contractor, that would be between he
AL.L-EN WARO
OFF!CIAL COURT FEDERA.l,., COURT
R16-4377
DALLAIS. TEXAS 7$221
I . ,.,
_ xz
65
1 and the contractor. We simply looked to the general con-
2 tractor as having the mechanic
1
g or the materialmen's lien
3 conveyed in that contract assigning that to us.
4- Q Now, returning again to the transaction between the
5
6
bank and John Price, let me also ask you for the record.
was your position at the bank, your title?
1
A I was senior vice-president and commercial loan
8 officer.
9
And in the normal course of your business, would:
10 you handle the kind of transaction which you did handle with
11 John Price?
12
A We were a small bank, and although I was considered
13
14
15
16
17
commercial loan officer, I did handle other types of loans,
and one of the types assigned to me specifically was to
handle home improvement loans, although other officers of
the bank could handle home improvement loans at their

discretion.
18
Q Now, did you in the course of processing this loan
19
investigate the security, that is, the equity in the
20
A I contacted an appraiser and asked him to take a
21
22
23
24
look at the property just to give me an idea whether there
would be sufficient value in that property above and beyond
the first lien which would in effect protect the bank's
interest in case that the property had to be foreclosed on.
25
Q Now, 00 you recall whether or not this home in
Al-LEN WARD
OFFLCIAL COURT .n:PORTER FEDERAL COURT
RI 1!l.4:!l77
DALLA TEXAS 7522 I
66
1 question was homesteaded or not?
2
A That question came and as I can recall I
3 indicated to the title company in our conversation that this
4 would not be homestead and that they would have to take a
5 homestea.d declara.tion. At that time., I knew that Mr. Pricerf:
6 address' was on ArizoIla street and that this particular piece
7 of property was in another location, and it had been con-
8 veyed to me in a conversation that it was actually rental
9 property, and so I assumed that it was not homestead
10 propert,y-.
11 Q
Did you then agree to process this loan application
12 for John Price?
13
14
15
A
A
Yes.
What was to be the amount of the loan?
I think amount that we decided upon was
16 eighteen hundred dollars.
17 Q
Did you require that John Price have a contract
18 for the repairs to be done on the house?
19
20
Q
Right.
And I think you required only Olle not
21 competitive contracting, is that
22
23
24
A
A
That's correct.
And Why was that?
Generally we handle the customer according to what
25 we feel their expertise is, and on certain When I
ALLEN WARD
OFFICI,t.L COURT ftl!!:PORTl!ft .. FI!.DERAL. COURT
R18-4377
DALLAS. TEXAli 715221
67
1 get a little3 old lady that I felt didn't know too much about
2 home improvements or construction or this type of thing
3
we
3 would go out and get a bid from a contractor. Say it might
4 come under five dollars. I would suggest that they
5
get one other bid or two other bids
3
because one came out at
6
two one at five thousand, one at twenty-five
I would suggest that they question the
thousand dollars.
I
disparity between tbe bids. They may be undercharged or over,
charged. And if a person seemed to know something about
9
7
8
10
home something about contractors, I usually
11 let them go at their discretion.
12
And that's what you decided to do in the case of
13 John Price?
14 A Right.
15
And the of this loan was for one thousand
16 eight hundred rifty dollars?
17
A
I think that's correct.
18
Q How much of that money, if any, went in to payoff
19 these pre-existing loans that you have already testified
20 about?
21
A
I am being asked to testify about an occurrence
22 that happened in May of and without some documentation
23 for me to review it would be difficult for me to say. I can
24 only
25
Q
To the best of your recollection, would it be over
AL.L.EN WARD
OP'I"I<;:IAL RiPORTJ:;R - FEDIii:RAl. COURT
RI e-4377
DALLAS, TEXAS 7622'
$;
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a thousand dollars?
A I think it was a little bit over a thousand
dollars that actually went on the loa..."'.\. pa.yments:t and I think
that the balance of' it went into the checking account.
Q
Went into John Price's checking account?
A Uh-huh.
Q
Now, Mr. Gauthier, had you been told by John Price
prior to actually disbursing the monies of this loan that
part of the work on the home had already been
done?
A Yes.
Q And you knew that prior to disbursing the money?
MR. BADGER: Your Honor
J
we are going to object
to the form of the question that he knew that it had been
done. I think a more question would be had he been
told that it had been done?
THE COURT: Well, I will sustain the objection to
the form. I assume it would have to be based on what some-
body told him.
MR. JOHNSTON: Your Honor.
Q Had you been told by Mr. Price that some of the
work had already been done?
A I had been told by him that some work had been
done on the house and that the reason he needed the funds
was to complete the work.
AL.L.EN WARD
OFFJCIA..l, COURT RIiii:f10RTER COURT
R184377
DALLAS, TEXAS 76221
"
69
1 And I take it you received a contract from --
2 signed by the contractor, Mr. Price and his wife, did you
3 not?
4 A The signature I assumed to be Mr. Price's and
5 Mrs. Price's.
And you found the
loan to be in proper formr
And proceeded to go ahead and transfer the money?
Yes.
Right.
A
Q
7
8
6
9
A That's correct.
10
JOHNSTON: Pass the witness.
11 CROSS EXAMINATION
Mr. Gauthier, the contract for home improvements Q
12 BY MR. BADGER:
13
14 which Mr. Price presented to you in regard to this loan was
15 a contract with a man Roger S. Mullins, was it not, or
\
16 purported to be?
17
A That's correct.
18
Q Was it your understanding that Mr. Price had
19
actually entered into a contract with Roger S. Mullins?
20
A That's correct.
21
And on what did you base that?
22
A On a contract that I received supposedly delivered
23
from the title company.
24
Q All right. Had Price told you that he had entered
25 into a contract with Roger S. MUllins?
ALLEN WARD
CFP'ICIAL. COURT R!i:pORTER
R18-4377
OALl-AB, TEXAS 75%21
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the
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A I don't believe that we discussed exactly who the
contractor would be until the time that the contract was
actually delivered.
Q All right. But when the contract was d e l i v e r e d ~
did Mr. Price represent to you that here is the contract that
I have entered into with Mr. Mullins for the work to be done
on my house?
A That's correct.
Q And when he presented this contract, he also pre-
sented a mechanic's lien, did he not?
A That's correct.
Q And this would be assigning Mr. Mullins' interest
in that house for the work that he was supposed to be doing
to the bank, is that correct?
A That's correct.
Q.
Q So you had a mechanic's lien to protect your
eighteen hundred and fifty dollar loan, is that correct?
A That's correct.
Q Did it matter to you whether or not -- how the
money was disbursed?
A No, because of the fact the ,bank would be protected
since we had determined that there was sufficient equity,
and I believe at that time we determined, even without the
repairs to be done to the house, that there was sufficient
equity to the house to protect the bank
l
s interest so that
ALL.EN WARD
OFFICIAL COURT REPORT_II. FEDERAL COURT
R184377
DALLAS. TEXAS 752.2.1

tract 1
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anything else to be done by the contract would add additional
value to the house, further protecting the bank's interest,
and since we had been conveyed a lien which was held by the
contractor to the bank; then our interest was protected.
Q All right. Correct me if I am wrong, sir. At the
time that you authorized the loan on May the 1st, 1974, it we
your understanding that John Price had entered into a con-
tract with a Roger S. Mullins to do home improvement work
and that the mechanic's lien attached to that contract
assigned Mr. Mullins' rights under that work, for that work,
to your is that correct?
A That's correct.
Q If you had not had that contract presented to you
as a valid contract and that mechanic
1
s lien presented to you
as a valid mechanic's would you have authorized the
loan?
A No, because it would have been simply a signature
loan.
MRo BADGER: No further questions, Your Honor.
MR. JOHNSTON: Nothing Your Honor.
THE COURT: All right. Thank Mr. Gauthier.
MR. JOHNSTON: Your Honor, may this witness be
excused? He advises me that his one-moath-old daughter has
11:30 hospital doctorts appointment.
THE COURT: Yes. Do you have any objections?
ALLEN WARD
OFJI'lCIAL. COURT RItPORTER COURT
RI &-4377
DALl..AB, 'rEXAS 75Z21
x:.;:=:;::x:
1
2
72
.MR. BADGER: I am sorry.
MR. JOHNSTON: His one-month-old daughter has a
3 doctorts appointment at 11:30.
4
5
6
7
MR. BADGER: Mr .Price?
MR. JOHNSTON: No, ~ . . r . Gauthier.
MR .. BADG'ER: Oh, I have no objection to his leaving.
THE CODET: You may be excused. Having just taken
8 Qne to the doctor this morning, I can understand that.
9
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IS
16
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21
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MR. JOHNSTON: Call James Hopkins, Your Houor.
AL.L.EN WARD
OFFicIAL C01JJlT llEl:PORTEfl I'DERAL COURT
R18"4877
DALL.AS. TDIoS 7!1Z2l
1
===::a;;;:::zz
.c..;_ou==:
_x:=s:.
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73
-
State your name for the record, please.
2 JAMES Pc HOPKINS,
3 being first duly sworn, testified on his oath as
5 BY MR. JOHNSTON:
6
7
8
A
Q
James P. Hopkins.
Mr. Hopkins, you are a practicing attorney here in
9 Dallas County, is that correct?
10
11
A Yes, I am.
And in January, February and March of this year,
12 you were in practice with Cleophus Steele, is that correct?
13
14
A
Q
true.
Now, you undertook, did you not, to represent
15 John Wiley Price, the person seated to my right, in certain
<;,
16 federal charges pending against him
17
18
19
20
A
Q
A
Q
Yes, I did.
-- during that period of time?
I did.
Mr. Hopkins, other than the obvious attorney-
21
22
client relationship you had with Mr. Price, was he also an
employee of yours?
23
24
25
A
Q
A
Well, he had been an employee of ours.
In your law office?
Thatrs right.
ALLEN WARD
Or'FJCIAL .. FEDEftAL,COURT
1f18-4377
OALLAS, TI>XAS 75221
, .
1
2
Q
A
74
In what capacity?
Well, he did some investigative work, stuff of that
3 sort.
4 But not as an attorney?
5
6
A
Q
Not as an attorney.
Did you consider yourself retained by him to
7 represent him 1n this case?
8
9
A
Q
No, I didn't.
What exactly would you say your relationship with
10 him was in this case?
11
12
It was more in the advisory capacity.
Did you receive a fee for your services?
13
14
A
Q
No, I didn't.
When did you become first involved with this case,
15
Mr. Hopkins?
16
A I can't remember the exact date, but it was -- I
17 can't remember the exact date. It was
18
19
20
Q
A
Around the first of the year in 1976?
I guess it was around that time. I am not sure.
Did you undertake at any time -- w e 1 1 ~ you read
21 the indictment of the case, I presume,. Mr. Hopkins?
22
23
A
Q
Yes, I did.
And you understood that Mr. Price was charged with
24
25
knowingly making a false and material statement to induce the
bank to make a loan?
ALL.EN WARD
gFFICIA.L COlJRT REPORTE;R FEDERAL COURT
RJ 6-4377
CAL-L-...S, TEXAS 7!l221
,-
75
1 A
he had
Mr. Price, my understanding of the statute was that
the statute was that he had made false statements
3 to the bank in order to induce them to make this loan on
4 property on which work had already been done.
5 Q And what was your understanding of the nature of
6 the false statement that was made to the bank?
7 A My understanding of the false statement was that
8 the bank -- that the false statement induced the bank to
9 make this particular loan.
10
11
Q
A
What was the false statement that was made?
The false statement was that he was going to use
12 the money" to improve the house.
13
Q And what was your understanding of the facts in
14 that regard?
15 A The understaQding, my understanding of the facts,
16 were that he did tell the b ~ ~ k that he was going to use this
17 money to improve the home and that the witnesses tor the bank
18 were going to ao testify.
19
Q
And was it your understanding that that work had
20 already been done by the bank -- I mean by Mr. Price?
21
A It was my understanding that some of the work had
22 already been done.
23
Q And was it your understanding that not all of the
24 money in the home improvement loan was going to be used in
25 paying for those home improvements?
ALLEN WARD
Ofl'lCIAl. COURT RI!:POR'tI!R fEOERAL COURT
R18-4377
DALLAS, TEXAS 7'Z;;!1
1
76
MR. BADGER: Your Honor, we are going to object
2 to what his was. If he was told something,
3 fine, but if it's what his understanding was, we object to
4 it. It's hearsay.
5
6
THE COURT: I will sustain the object as to the
form of the question.
7
Q Had you been told by Mr. Price that it was not
8
used entirely for the home improvement purchases?
9
A I was told that it was not used for improvement
10 of the home.
11
Q
Mr. Hopkins, as a lawyer, did you advise Mr. Price
12 as to the plea that he should enter?
13
14
15
A
Q
A
Yes, I did.
And what was your advice to him?
My advice was based on my understanding of
16
17
the statute and the case against him that he should plead
guilty.
18
Q Now, did you come to court with him on January
19
the 23rd, 1976?
20
21
A
Q
Yes, I did.
And what was the purpose of. that court hearing, as
22 you recall?
23
24
25
A
Q
A
Was that the first hearing?
Yes, sir, my understanding.
It was ror arraignment.
ALLEN WARD
Qf'.F'ICIAt. RI!!:PO"TER FOERAL.l;:OURT
R18.4377
CAW-AS, 7!;221
1 Q
77
And at that time had you advised your client to
2 enter a plea of guilty?
3
4
A
Q
Yes, I had.
And do you recall whether or not a plea of guilty
5 was entered at that time?
6
A I we tried to enter a plea, but one was not
7 entered.
8
Q
All right. Of course, the transcript of that
9 hearing is the beet evidence, is it not --
10
11
12
13
A
Q
Ye'e, it is.
-- of what transpired at that time?
That's true.
Now, you were told to return to court on February
14 the 13th, were you not?
15
16
A
Q
Yes, I was. r.,
And at that point in time had you advised your
17 client as to what his plea should be to these charges?
18
19
20
A Yes, I did.
And what was your advice?
At that time, I repeated that, based on my under-
21 standing of the statute and the evidence against him, that
22 he should p1eaa guilty.
23 Q Now, where did your understanding of the evidence
24 come where did you gain your understanding the
25 evidence?
ALLEN WARD
OFFICIAL. COURT FEDERAL. COURT"
R18-4377
DAJ..LAS, TI!:XA6 75221
78
A Well, some of it came from the prosecuting attor-
ney; some of it came from the bank and from Mr4 Price him-
self.
Q Okay. Did you ever in the course of your handling
this case, did you ever talk with Leon Gauthier?
A I didn!t.
Q Did you ever talk to or attempt to talk with
Roger Mullins?
Q as I understand it, Mr. Hopkins, a plea of
gUilty was not entered on February the 13th?
A it wasntt.
Q Was the matter set for trial on March the 15th?
A That's right.
What attempts, any, did you make between
February the 13th and March 15th to prepare for a trial?
A we went to the bank again, talked with the
president of the bank. I asked that -- I asked Mr. Price to
bring certain evidences up-to-date, ano I told him to get in
touch with some of the witnesses so I could talk to them,
and, see, I researched the statute for the -- read cases on
it.
Did you Bubpoena any witnesses for the trial?
A No, I did not subpoena any witnesses.
Q And you did not talk With, except to the people at
ALLEN WARD
OFFJClAL COURT Re:PORTER a FED!::RAt.. COURT
R18.4377
PAI.l.AIi. TI!XA$ 75221
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79
1 the bank, the bank president, I believe you said, you talked
2 with no other potential fact witnesses?
3
4
A
Q
I talked with Wanda Small.
Now, how long have you been practicing lew,
5 Mr. Hopkins?
6
A
Q
Since '71.
Were you, in your own professional opinion, pre-
8 pared to proceed to trial on a plea of not guilty on March
9 the 15th., 1976?
10
lJi
A N0.ll sir.
Did you advise your client that you were unprepared
12 to proceed to trial on a plea of not guilty at that time?
13
14
15
16
Jt7
law?
A
Q
A
Q
I told him that we had no defense.
And that was based on your understanding of the
That t S right.
Now-, directing your attention to the date of
18 March 15, 1976, you understand that I wasn't there?
19
20
A ThetIs true.
And
J
of course, there is a record taken of those
21 proceedings-, but did you ask the court for additional time
22 on that date?
23
24
A
Q
Dia you talk with your client regarding changing
25 I of this plea from not guilty to guilty?
ALLEN WARD
O"'r'ICIAL COVRT R : E - P O R T ~ R ~ FEO!!RAL COURT
R16-4377
CAI.L.AS, TEXA$ '7l:l2.2.!
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A Yes, I did.
Q And what was your advice to in that regard?
A My advice was the same as on the two previous
occasions.
Q That he should enter a plea of guilty?
A Thatfs right.
Q And explain, if you would, to me and the court the
basis as of March 15th why you felt that he should enter a
plea of guilty.
A Well, I felt that he should plead guilty because
of my understanding of the statute. The statute stated that,
if you should present a materially false statement to the
bank that you are going to use money for home improvements,
then it's a violation of that statute if you don't use the
money for that purpose.
Q And you thought in that regard that your client
was guilty?
A That's right.
Q Did you also express to your client some concern
that to enter a plea of not guilty attempt to contest
the charges might result in a more severe sentence?
A Yes, I did.
Q Can you recall exactly what you did tell him in
that regard?
A well, I can't recall exactly, but it was
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O"P'lcrAL COURT I"!:DE:RAt. COURT
R184377
CAL.L.A5. TEXAS 75:2.;2,1
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tantamount to that if we should plead guilty the
chances of his getting probation would be better than putting
the court through a trial and then being found guilty.
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Q
Now, during the course of these proceedings up to
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March 15th, had the United Assistant United States
Attorney < assigned to the case, read to the court and to the
defendant what he termed the factual resume?
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Yes, he did.
And is not -- is it or is it not a fact that your
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client had problems with certain aspects of that factual
resume in admitting to them?
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A Yes. On one occasion, his facts were somewhat
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different than the ones which the attorney
In the factual resume and so forth?
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A Thatts
Did you ever make any attempts to talk with the
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United States Attorney and attempt to correct the factual
resume?
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Yes, we talked with him on two or three occasions.
Did you talk with him on the 15th of March?
Yes, we did.
And what was his response?
He said he wouldn't change the factual statement.
Did you advise your client that he would have to
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tell the court that that tactual resume was true in order to
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OFF(CEAL COURT RE"ORT!!:-R FEOERALCOURT
R18-4377
DA.LLAS, TiXAS 75221
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1 enter a plea of gUilty?
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A Yes-, I did.
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Q And did you advise him to do that?
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A Yes, I did.
5 Q And you did that knowing that he had previously
6 told you that parts of the resume were inaccurate?
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Q
That's true.
And so it was on your advice that he entered a
9 plea of guilty
10 A Yes, it was.
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Q -- to the indictment?
12 A Yes, it was.
13 Q
And that he told the court that the matters in the
14 factual resume were true?
15 A Tht'a true.
16 MR. Pass the witness.
17 CROSS EXAMINATION
Mr. Hopkins, how long has it been since you have
18 BY MR. BADGER:
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20 seen the indictment in this case?
21 A On the 15th.
22 Would you like to take a look at it --
23 A Yes.
24 Q -- a copy of it?
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A Yes.
ALLEN WARD
OFFICIAL COURT RE,PORTEft Fe:CERA.l,., COURT
RI 1!I4377
DALLAS, TEXA.!i 71522 I
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Q Have you had an opportunity to read it, sir?
A Yes, I have.
Q All right. Now, it doesn't say anything in there
about how the money was going to be used, does it?
A No, it doesn't, except that --
Q All it says is that the falsity of the statement
was that he had entexed into a contract When he hadn't
entered into a contract, is that correct?
A For home improvements.
Q That's correct. So you understood that, did you
not?
A I understood that for home improvements that this
particular statement was used to induce the bank to loan him
the money for home improvements.
Q All right. in regard to the 23rd of January
A Uh-huh.
-- a plea of guilty was entered on that date, is
that correct?
A I think I tried to enter a plea of guilty.
Q Well, he plead guilty, and the jUdge wouldn't
accept it on that day?
A That's true.
Q And the same thing happened on February the 13th?
A That's true.
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O:FFlc:tAL. COURT REPORTER COURT
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DALLAS, ,.EXAli 75221
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Price tried to plead guilty, and the jUdge wouldn't
2 accept his plea, is that correct? And if I am incorrect,
3 please advise me. It was set aside after the judge went into
4 a factual inquiry of what happened, is that correct?
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That's correct.
He set the case for trial on March the 15th, is
7 that correct?
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A Yes.
All right. You say after the February 13th hear-
10 ing you went out and did a little work investigating this
11 case, you went out and talked to the president of the bank,
12 is that correct?
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Yes.
And you asked Price to bring you some evidence?
Yes.
What type of evidence did you ask him to bring?
Well, r told him to -- I needed .to talk with the
18 secretary that he said had seen Mr. Mullins. I told him to
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bring the factual -- not the factual report, the probation
20 report, up-to-date, and things of that sort.
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Q
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Did he ever do any of that?
No, he didn't.
He didn't do what you him to do?
And you say you researched the statute?
AL.LEN WARD
OFFICIAL. COURT FEDERAL COURT
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DALLAS, TEXAs 75221
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All right. You talked to Wanda Small?
Yes.
Now, who is Wanda Small?
Wande is my secretary and
She was the secretary that notarized the signatures
7 on that contract, she?
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Q
Yes.
All right. So had one of the key witnesses in
10 the case right there in your own office, did you not?
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Yes.
And Price was working in that office at that time,
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That's true.
Now, you understood that it was the government's
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contention in prosecuting this case that Mullins had never
entered into this contract with Price, did you not?
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Q
Yes.
And you understood that we were trying to prove
20 that, that we intended to prove that by our case?
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A Yes. In fact, I think you told me that you had an
22 affidavit to that effect.
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Q
From Mr. Mullins?
That's true.
And so you understood that the government's case
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OFFICIAL COURT COURT
R18-4377
DALLAS, TEXAS '18221
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rested on whether or not there was or not a contract, is
that correct?
A Well, not necessarily. I always felt that there
could be a parol contract. My understanding of it was
if he had said that he was going to use this money for
a home improvement loan and didn't use it for a home improve-
ment it was a violation of the statute.
Q All right. on March 15, we were set for
trial at 9=30 in the morning, were we not?
A That's true.
Q And I had all of the witnesses sitting out here in
the courtroom, the government was ready to go to trial?
A Thatts true.
Q All right. When' you came in, I asked you to come
over to my table, and 3 showed you exactly what my case was
going to be, did I not?
A That's true.
Q I showed you statements of witnesses, I showed
you all of the documents that I going to offer and What
the evidence would be the case for the government j did
I not?
A That's true.
Q Did I hide anything from you?
A Not to my knowledge.
Q All right. Did I misrepresent anything to you?
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OFF"ICIAL. COURT ft.l!!:POPlr:'rER. COURT
R18-4377
lJAL.LAS, TEXAS 75221
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A Not to my knowledge.
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Q
All right. Now, isn't it a fact, sir, that the
3 reason that you advised your client to plead guilty was
4 because you thought he was guilty?
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Based on my understanding
All right.
-- that's why I advised him to plead guilty.
And weren't you convinced that the government's
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case was a strong case to prove that there was no contract
entered into between Mullins and Price?
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A Based on my understanding of the statute, I felt
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that the government's case was a good case.
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Q Answer the question more specifically. Isn't it
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true, sir, that after you reviewed the evidence which I was
going to present that Qay you were satisfied that we could
prove that there was no contract entered into between Price
and Mullins?
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A Based on the evidence that you had there and my
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understanding, I relt that your case was a very good case.
But you were satisfied that we could prove that?
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Yes, I was.
That there was no contract'?
Yes, I was.
That there was a Mullins' signature?
I wasn't satisfied to that effect.
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couRT RI!:PORTI!.R F!:DERAoL cou RT
R18-43'7
CAl.I.AS, TIlXAS 75221
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Q Well, that no contract had been entered into
between Mullins and Price?
A Well, he had signed an affidavit to that effect,
that he hadn't signed the contract.
Q Isn't it a sir, that you disbelieved your
client's story on that date?
A Well, not to that extent. I felt that the
evidence was overwhelming against him, that four or five
people against one, I was afraid that, had we gone to
then there were possibilities of perjury or things of that
sort.
Q Let me ask it this way. Did you think that he was
telling you the truth?
A Yes, I felt he was telling me the truth to a
certain degree, but never know for a fact whether things
are true or not.
Q Did you think he was telling you the truth when he
told you that he had entered into a contract with Roger
Mullins?
A, I had an open mind on this. I didnrt know. I was
kind of confused on it. I did know, i,r a man was going to
come up and say that he didn't sign "and another man say he
signs, there is something left to be desired.
Q Isn't it a fact, sir,; that the reason that you
advised him to plead guilty was because you didn
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t believe
AL.L.EN WARD
DFFICIA.L COURT REPORTER. FEDERAL. COURT
Rf S-4377
DALLAS, TEXAS 75.321
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him and you believed the government's case was strong and
that, if there was a trial, he would have been convicted?
A Can't say to that. I believed that the
had a good case.
Q All right. Now, I believe you testified about the
factual resume Which was going to be read into the record.
This is the same factual resume that was read ba.ck in
January and February again on March 15, was it not?
A That's true.
Q There were no changes to that factual resume?
A That's true.
Q That factual was two months old when we read it on
March 15th?
A That's true.
Q Now, on you asked -- what part of the
factual resume did you ask me to change? Would you like to
see a copy of it, sir?
A Yes. We were talking about changing the factual
resume. We asked you if you would make some changes in it,
and you said that you would not.
Q All right.
A I don't remember -- I don't think we outlined an1
specific changes.
Q Well, what did you want me to change? If we didn't
discuss it specifically, what did you want me to change?
ALl-EN WARD
OFFICIAL. cOURT IU.PORTER I'EDEItAL. COUHT
R184377
DALLAS. TEXAS 7522t
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The fact that -- let's see -- that the loan was --
2 o:lofficer of said bank for improvements to be done on a house
3 owned by Price. II We wanted you to add to this that the ba..'1k
4 knew what the money was going to be used for and the fact
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if
that the loan influenced the loan of the money, whereas the
bank received all of the benefits of the money, and he never
received any benefits of it.
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Q So you didntt object to the part that said that
9 Price knew that he had not entered into a contract?
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No, I didn:t. I didnft object to that.
Did Price object to that part?
Yes, he did.
Did Price object to that part?
I felt that, if he had a contract, we could prob-
15 ably show he had a parol contract.
16 Q I am talking about the written contract.
17 A I understand.
18 Q So you had no objection to the following state-
19 ment: f1Price then knew that the contract was false and
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never entered into by Price with a Roger S. Mullins to make
21 home improvements on his house"? You had no objection to
22 that portion of the factual resume? 0
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Q
Yes, I did have objections to that portion.
Now, didn't I explain to you that that was the
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critical portion of the factual resume?
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OFFlctA.L. COURT REPORTER ~ f'E,CE,RAL COURT
RJ S.oCl:;l77
CALLAS, TEXA;; 7:>221
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No, you didntt.
I didnlt tell you that, if he can't admit that, if
3 that's not true, then he is not gUilty?
4 A No, you said that he would have to admit to every-
5 thing in the factual resume.
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7 not?
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Q
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All right. And that would include that, would it
That would include every facet of it.
And I told you, if he can't admit that, then we
10 might as well have a trial, because the judge will never
11 accept his plea, didn't I?
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Yes, you did.
I didn't suggest that he lie?
I guess, based on your understanding and the facts
15 that you had, that
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Q All I told you was that, if he canlt admit the
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facts as I have them here in that factual resume, the jUdge
is not going to accept his plea of guilty, isn't that
correct?
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Q
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Among other things, yes.
And we might as well go to trial?
Yes.
And we were ready to go to trial right then?
Yes.
And after I talked with you, you had approximately
AL.L.EN WARD
OFF'SCIAt., COURT REPORTER. FEDERAL. COURT
RI B-4377
CALLAS, TEXAS 75221
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1 an from 9:30 to approximately to talk to
2 Mre Price and explain this to him) didn't you?
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Yes" I did.
And after an hour of consultation and after my
5 advising you that these facts were all critical to the case,
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whether you understood them before you came in at 9:30 or
not, from 9:30 until 10:30 you knew that the government
rested its case on these factual suggestions or facts
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alleged, these factual allegations?
10 A Well, that advice was not the only advice that you
11 gave me. I think we -- after looking at the the
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contracts and things and the fact that you told me that all I
of the witnesses were going to testify to'the fact that they 1
Mr. Mullins was going to testify to the fact that he
didn't sign the Mr. Gauthier was going to testify
to the fact that had nothing to do with it and Wanda was go-
lng to testiry to the fact that she notarized the
based on these things, and I think we were under the
impression that the government had a good case.
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Q
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All right.
And that the best thing to do was to try to get
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the best deal going for him that we could, and the fact that
other cases could evolve out of this particular case, and we
didn't want to take that chance.
Now, do you consider that bad advice, bad legal
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OPFIC,"'1. COURT REPORTl'R FEDI:RAL. COURT
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Well, I consider it good advice from my standpoint.
All right. And donft you still consider it good
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Yes, I do.
So you don't think that you misadvised him, do you?
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A Not I feel that it was good advice at the time.
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Q
And you think it's bad advice now? Are you saying
9 that you incompetently represented Mr. Price?
10 A No, I am not saying that I incompetently represente
11 him. I am saying that, based on the facts that I had at that
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time, my advice, the advice that I gave him was good advice.
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Q All right. What facts have you learned since
14 March the 15th that you didn't have at your hand on March 15tJ?
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A That -- there are quite a few facts
16 that I have learned at this time.
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Q
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All Let's list them.
Since he has hired a new attorney, and this attor-
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ney has come to me and asked me what we did, and we have
discussed them.
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Q What facts? You said there ,are several of them.
22 Letts start listing them.
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A He said that he could -- good faith misrep -- I
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mean representations -- would have been one of the defenses
that he could have used.
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OFFIClAL.. cowRT "EPOII!:TilLR .. I"'EDI!:.RAL. COURT
RIII-4377
OALLAS, TIOXAS 715;!21
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Pi
Well, you had the facts, did you not?
Yes.
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Q You knew all of the facts of the case as repre-
4 sented to you by Price and as represented by our case?
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A a!f.act. I knew the facts from that stand-
6 point.
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All right. So you had no new evidence of factual
8 circumstances surrounding the case?
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A Yes, I did have some new evidence of factual
10 circumstances sourrounding the case.
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Q All right. What was the new evidence that you
12 developed after March the 15th as to the factual circum-
13 stances? I am not talking about legal analysis; I am talking
14 about factual circumstances, new witness. Do you have a
15 new witness?
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A Well, I found out later that the government wit-
17 neeses were not going to testify the way that you had
18 informed me that they were going to testify.
19 Q
All right. Now, Who was going to testify dif-
20 lerently?
21 A Mr. Gauthier had said that these were things
22 that were common in the bank.
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What was common?
Whereas they would loan money knowing it wasn't
25 going to be used. He said that money did not -- that the
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R18-4377
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1 contract did not influence him to make the loan.
2 That was your -- you have learned that since
3 March the 15th, that his testimony was going to be that that
4 didn't influence him in any way?
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That's right.
So you believe today what his testimony
7 will be here in court?
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to
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Q
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I don't know what his testimony will be.
Well, you said you have got the facts.
this is what he said. I can only go by what
11 he talks, what people tell me.
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When did he tell you this?
I was not and I don't know the workings of
14 the bank..
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Q
All right. Mr. Gauthier is going to change his
16 testimony, as I represented it to you?
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Yes.
In that the contract had no influence on his
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decision whether to authorize the loan, is that correct?
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A That's right.
All right. And you were told that by Mr. Johnston,
22 I the new attorney for Price?
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A I don't know for sure, but I have been told that
24 since that time.
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Q who have you been told by?
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OFFICIAL cou RT FECEIil",,"L. COURT
R18-4377
DALLAS. TEXAS 75221
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MR. JOHNSTON: Your Honor, I am not sure what the
Z relevance of the inquiry is as to who told him.
3 t
4 JUdge.
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MR. BADGER: Well, he obviously doesn't know,
MR. JOHNSTON: The question was what facts, and
6 if he doesn't then that's obvious to the U.S. Attorney
7 that the question has been &iswered.
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THE COURT: Well, I think that'e true. The
9 testimony of the various witnesses will stand on its own
10 feet and it will be judged by the --
11 All right. Now, what other witnesses were going
12 to testify differently than I have represented to you?
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A Mr. Gauthier is the only one.
Q Ob, so only one witness?
A Uh-hub.
Q
And so the only new evidence that you have,
is that correct?
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Q
That I S correct.
And so -- now, in regard to your advice to
20 Mr. Price about a possible sentence that he might receive,
21 you qualified that did you not, by saying that you
22 might get probation on a plea of guilty more likely than a
23 plea of not guilty and a conviction'?
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Q
That's true.
Is that right?
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OFF.CJAl. COURT R!:POR'rER .. FEDERAl-COURT
R18.4377
DALLAS, TEXAS 75221
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That' 6 true.
And you couldn't guarantee him probation?
No.
He understood that you him
5 probation?
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A I told him that the chances are better if he would
7 plead guilty, probation is never guaranteed with the judge,
8 because I tried to enter a plea bargain with you, and you
9 said that the Judge was the last word on everything, and you
10 couldn't influence it one way or the other.
11 Q And that I would make no representations to the
12 court one way or the other
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That's true.
-- as to sentence, is that correct, sir?
That's true.
Now, Mr. Steele was also co-counsel in this case,
17 was he not?
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A I wouldn't say that he was co-counsel. He felt
19 that he couldn't represent Price because of the fact that
20 he was a justice of the peace and he worked for him and it
21 might create some type of problem.
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Q
A
Q
Of course, he was here on every court setting?
Yes
3
he was.
All three, on January 23rd, February 13th, March
25 the 15th, and on I believe it was March the 16th when he was
AL.LEN WARO
OFFrCIAt,. coURT RItPORTER FEDE.RA.L. COUMT
R184377
DALLAS. TEXAS 75221
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1 sentenced?
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That's true.
And he addressed the court as counsel ror the
4 defendant on everyone of those did he not?
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No, he did not.
He never said a word to the court?
He said some but he never addressed the
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court as a co-counsel.
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Q
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He did not'?
Not to my knowledge.
You were there for all of those occasions?
Yes, I was.
And Mr. Steele was also advising Mr. Price, was he
14 standing out here in the hall?
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17 do?
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Yes.
And he was telling him what he should or should not
Yes.
And so you and Mr. Steele were both actually
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counseling were you not?
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Q
I guess you could say that.
All right. Now, I believe that this affidavit whici
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i'1aS attached to the defense' s motion sa.ys, liMy law partner"
Cleophus Jr., and I represented John Wiley Price in
the above cause.
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Is that a fair statement. sir?
ALLEN WARD
OFFICIAL couRT RE,.ORTI!:R FEOER.... t.. COUR,.
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PAI.I.AS, TEXAlil 75221
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we advised him. I guess that
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s a fair
2 statement.
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Well
It's a fair statement.
This is a copy, but is this your signature, sir?
Yes ... it is.
All right. And did you read this affidavit before
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you signed it?
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A Yes.
All right. who prepared this
11 Mr. Johnston?
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.Yes, Johnston.
And he presented it to you for your signature?
We discussed it before he prepared it.
All right. And you had no objection to saying
I had no objection.
-- "Cleo Steele and I represented him;'?
No.
And in Paragraph 3 you say flBecause of our
20
21
22
inexperience in the area of federal criminal law, my partner
and I did not adequately advise our client of the possible
defenses that could 'be raised regarding thie offense.
1t
23
24
A
fl
S
11 :1
pec..l..l. ca y--
That
1
a your opinion that you inadequately
25
your client?
ALLEN WARD
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1 A Yes, and based on the evidence that has come
2 forth since that time, at the particular time, I didn't reel
3 that it was inadequate.
4 Q
All right. So you are basing that on the new
S evidence or Mr. Gauthier
'
s testimony?
6
7
8
A
Q
A
Yes.
And that only?
And the fact that Mr. Johnston has told me of
9 other defenses that could have been used 4
10
Q Are you going to take any more federal cases
11 because of your inexperience?
12
13
A
Q
Well, I was not retained on this one.
Well, you represented him, didn't you, you appeared
14 in court?
15
16
A
Q
Yes. He a s k ~ d me to advise him.
And does Mr. Price work in your law office now on
17 a part-time basis?
18
A
No. He still uses the office, but he doesn't work
19
for us any more.
20
21
22
23
24
25
Q
A
Q
A
Q
A
He is in your office on a daily basis today?
No, he 1s not.
How about January, February and M a r c ~ of this year?
Well, he comes in and out of the office.
All right. So he is frequently in your office?
Yes.
ALLEN WARD
OFJI"ICTALCOURT REPORTER ~ FZD1!RAL.COURT
R18.4377
CAI.US, TIl:XAli 715221
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Q
A
Q
101
And Mr. Steele offices in that office, also?
Yes.
And Wanda Small still works there?
Yes.
And he was a full-time employee for you back in
6
March of t74, was he not?
7
8
9
10
11
A
A
Somewhat.
And May of is that correct?
Somewhat.
MR. BADGER: I have no further questions.
THE COURT: All right. Mr. Hopkins, let me ask
12 you a question. On direct by Mr. Johnston, I
13
14
believe you stated that you advised Mr. Price to state under
oath that the factual resume was true and correct, even
15 though he had previously advised you that 1t was not. Now,
Cl.
16 did I understand that to be your testimony?
17
18
19
20
TEE WITNESS: my testimony is that, based
on the evidence that the goverp-ment had and my understanding
of the statute, that this was -- to plead guilty to the
factual resume would lighten the burden on him rather than
21
23
going through a trial and taking a of getting perjury
22 charges brought against him. We had no other witnesses.
THE COURT: Well, let me ask the question this way.
24 The reading of the indictment, the reading of the factual
25
statement, fairly states the false representation alleged
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102
! to be that he had entered into a contract with Roger S.
2 Mullins when in fact he had not. Thatts the allegation.
3 Now, that's what the factual resume stated and that is the
4 statement under oath, as you know, that Mr. Price stated was
5 true and correct. Now, did Mr. Price state to you prior to
6 that hearing that that statement in the factual resume was
1 wrong? In other where it says that it was false that
8 he entered into a contract with Mullins, did he ever tell you
9
10
that that was not a correct statement?
THE He never told me that that was not
11 statement, but he said that he wasnat sure because
12 of the that he left the contract there. He doesn't
13
know who signed it. He thought Mr. Mullins signed it, he
14 said.
15
THE COu"RT: But you advised him in vie't'l of' that
16 for him to testify that the factual basis was correct, that
17 in fact the contract had not been made by Mullins?
18
19
20
ment.
THE I guess that would be a true state-
MR .. BADGER: YOUl" Honor, and we would add Hand
21 that he further kne1'l that he had not entered into
22 That is also in the factual, trknew that the contract was
23 false and never entered into by Price. II
THE COURT: Well, I have the information I need.
25
MR. JOHNSTON: Any fvxther questions$ Your Honor?
ALLEN WARD
OFFICIAL. COURT coURT
RIS-4S77
DALLAS, TEXAS 78221
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103
1 THE COURT: No, I have no further questions
2 REDIRECT EXAMINATION
3 BY .MR. JOHNSTON:
4 Mr. you donlt have a copy of that factual
5 resume there.
6
7 Honor?
8
MR. JOHNSTON: May I approach the witness, Your
THE COURT: You may.
9
Q
Reading from that sentence, it says, does it not,
10 that I'Price then knew that the contract wa.s .false and never
12 improvements on his house,,11 and that's a fair reading, is it
13 not?
14
15
A
Q
That's right.
And so the phrase, 11to make home improvements on
c.
16 his house" t, qualifies the rest of the sentence that goes
17 does it not?
18
19
A
Q
That's right.
Mr. Hopkins, it was your understanding at that
20 time as a lawyer that -- and you knew from talking with your
21 client -- that in fact the home improvement -- the money from
22 the home improvement loan was not in fact going to be used,
23 the bulk of it, was not going to be used for home improve-
24 ments on the house?
25
A That's true.
ALLEN WARD
OFFICIAL COURT RI!:PORTER J"'EDI!RAl..COURT
RI84:377
TEXl\li 75;22'
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Q So to that extent you believe that that sentence
you believe and advise your client that that sentence was
accurate to the extent that it implied that the contract was
to make home improvements on the house and that the loan
money would be used for that purpose?
A That's right.
MR. BADGER: Your Honor, I want to object to the
leading questions. This is his witness, and he is testifying
for the man.
MR. JOHNSTON: The witness was subpoenaed by the
government, Your Honor. I did call him, but I didn't sub-
poena. him.
Q Well, Mr. Hopkins, state for youreelr what your
understanding of that sentence is as it applied with the law
as you understood the law at that time.
A My whole understanding and the whole thing turned
on the fact that I understood that the loan was supposed to
have been used to improve the and if the loan was not
used to improve the then it's a violation of the
sta.tute.
Q And to that extent you advised your client to
enter a plea of guilty?
A To that extent I did.
Q Did you do that in spite of the fact -- had your
client ever told you inconsistent with the fact that
ALLEN WARD
OP'I"'JCIAL. C:CVRT RlipOfrTER FED.ERAL COURT
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DAL.LAS, TEXAS 75.221
105
1 he did not know that the contract was false? Did he ever
2 tell you that he knew that,the contract was not signed by
3 Roger Mullins?
4
5
A
Q
No, he didn't know for sure who signed it.
He told you, did he not -- what did he tell you
6 consistently regarding Mullins' signature on that contract?
7
A Well, he told me that he and Mullins used to live
8
and he left the contract at the hOUS8o
9
10
Q
A
While they were living together?
While they were living together, and that he left
11 and came back and the contract was signed.
12
13
Q
A
All right.
And other surrounding circumstances, I felt it was
14 good advice for him to plead guilty to this particular
15
16
17
18
charge.
Q
A
Q
you never talked with Mullins yourself?
No.
Now, the government showed you an affidavit from
19 Mullins?
20
A Yes.
21
JOHNSTON: Your Honor, .may I inquire if 'that
22 affidavit is available?
23
24
25
THE You may.
MR. BADGER: Your Honor, it's not an affidavit.
Itls an F.B.I. 302 Form. It's a report of an investigation
ALLEN WARD
CFP-ICJAL COURT FEDERA'- COURT
Rl S4377
DALLAS, TEXAS 75221
106
t'
::c::: CUi" 0$0
~ ..". -
1 from the F.B.I.
2
J Q
So, Mr. Hopkins, to the extent that the U.S.
4 Attorney led you to believe that it was an affidavit, that
5 would be incorrect n o w ~ as you have already said, so you
6 never saw a sworn statement by Roger Mullins provided to you
7 by the U.S. Attorney?
8
9
A
Q
No.
And you never had an opportunity to cross examine
10 Mr. Mullins in any way --
11
12
A
Q
No.
about any purported statements that he might
13 have made?
14
15
16
17
A
Q
A
No.
Never sought Mr. Mullins out?
No.
Well, what other affidavits did the U.S. Attorney
18
19
provide you, what other sworn statements did the U.S. Attorn
provide you on March 15th?
20
A Well, on March 15th, the U.S. Attorney called me
21 over to the side and told me basically what his case was
22 going to be. He said that he had statements from Mullins
23 saying that he didn't sign the contract. He said he had
24
25
statements from Gauthier stating that he didn1t take part in
anything, didn't have anything to do with the loan or
ALLEN WARD
OJ'FICIAL. COURT REPORTER. F'EDERAL COURT
R18-4377
DAL.L.AS. TEXAS 75221
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whatever as to -- in I think it was implied that he
didn't know anything about what Price was going to do with
the money, and also that Wanda had said that she signed the
-- notarized the contract on the day that the people who
drew up the contract presented the contract, and when
Price's testimony would have been that he left the contract
Dvernight and when the contract was signed and entered at
the same time. This was the whole basis of his case, which
was an airtight as far as I could see.
Q All right. To the best of your recollection, did
the U.S. Attorney tell you that he had the statements or
affidavits to that effect?
A Yes, he did. He told me that he had statements.
MR. Your may I inquire at this
point if the U.So has those affidavits or
THE COURT: Yes.
MR. BADGER: May I ask the witness a few questions,
Your Honor?
Mr. Hopkins, isn't it a fact that I told you that
Mr. Mullins had testified before the grand jury and testified
to tha.t effect?
THE WITNESS: Yes, yoa told me that also.
MR. BADGER: And I showed you the report of the
investigation from the F.B.I.?
THE WITNESS: Yes.
ALLEN WARD
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RI B4377
DALLAS, TEXAS 75221
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MR. BADGER: And these were the only statements
2 that'! showed you?
3
4
THE WITNESS: Yes. But--
MR. BADGER: And this was what I told you that I
5 had, is it not true, sir?
6
THE WITNESS: You told me you had statements from
7 all of these witnesses.
8
MR. BADGER: Well, isn't it a ract that I told you
9 that this is what their testimony would be?
10
11
THE Yes, you told me that
MR. BADGER: Not that! had a physical, sworn,
12 notarized statement, but this is what their testimony would
13 be?
14
15
16
17
THE WITNESS:
That's right.
MR. BADGER:
THE WITNESS:
You told me you had statements.
Whether they be oral or written?
You just told me that you had state-
18 ments. I wouldnrt know whether they would be oral or written
19
20
21
GO BADGER: You saw everthing I have got?
THE WITNESS: As far as I
MRo BADGER: All right. You saw the F.B.I. report
22 in my office, did n' t you?
23
24
THE WITNESS: As far as I know.
MR. BADGER: And you didnft even file a motion for
25 discovery, did you?
ALLEN WARD
OFFICIAL. cou RT REPORTER FEOIi,R.A.L COURT
R18-4377
DALLAS, TEXAS 7$221
1
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"""":os,
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109
THE WITNESS: You told me I didn't have to.
MR. BADGER: Beca.use I was showing you everything
3 I had?
4
5
6
8
THE \"lIT:NESS: That's true.
MR. BADGER: Were you satisfied that I had shown
you everything I had?
THE vlITNESS: Yes, I was.
,MR .. BADGER: Were you satisfied that the witnesses
9 that were sitting in the court were the witnesses I had told
10 you about?
Ii
12 court.
13
14 Honor?
15
16
THE WITNESS: Just one or two with you there in
MRG JOHNSTON: May I have the witness back, Your
Ma .. BADGER: L:, have no further questions.
THE COURT: All right. I take it that was in the
17
18
19
20
21
22
23
24
nature of voir dire as to any other statements, and as I
understand Mr. Hopkins' testimony, he was shown the F.B.. I.
interview, which would show on its face it1s not an affidavit,
and the witness Mullins apparently testified under oath
before the grand jury, so that there was not an affidavit
involved.
You may proceed, Mr. Johnston.
MR. JOHNSTON: All right.
25
Q
Just a few brief more questions, Mr. Hopkins. On
ALLEN WARD
O""lCl"L cou.n REpORTER FEDI!:RA.L COURy
Rl 84977
OAL.LAS. TEXAS 7!;22\
110
1 March 15, the date that the matter was set finally for trial,
2 your client, Mr. Price, intended -- had told you he was go-
3 ing to enter a plea of not gUilty, did he not?
4
5
6
7
A
Q
A
Q
Yes, we discussed it.
Not gUilty?
Yes.
And so you came to the courtroom prepared to plead
8 not gull ty?
9
10
A
Q
Yes, we did.
Although you felt -- did you believe yourself to be
11 in your own professional opinion believe yourself to be,
12 prepared for trial at that time?
13
A At that particular time j I felt that we -- all we
14 could probably do was shotgun because of the things that
15 hadn't been done, that I hadn't been able to talk to.
16
THE COURT: Well, Mr. let me interrupt a
17 moment. Are you referring to when they were coming to court
18 for the setting on March 15th?
19
20
JOHNSTON: That is Your Honor.
THE COURT: Well, I had already entered the not
21 guilty plea for the defendant. He have to come
22 expecting to plead not guilty. I had entered a not guilty
23 plea for him, and he asked to be rearraigned in order to
24 plead guilty.
25
MR. JOPJlSTON: Yes, the thrust of my
ALL.EN WARD
OFFICIAL. COURT FEDERAL coURT
R18-4377
CALLAS, TEXAS 75221
" =.z=:::c:
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1 hearings,
2
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and that you have discussed that with himo
ALLEN WARD
OFFICIAL. cOURT RIrPORTCR Ff:OEJlAL C:OUftT
R184377
TVlA8 752.2.1
n.
THE COURT: Well, I don't want to anticipate what
the testimony is going to be. I have already been surprised
3 several times.
4
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20
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25
MR. I have nothing furtber from this
Your Honor.
THE COlJ"RT: All right.
MR. BADGER: I have no further questions.
THE COURT: All right. Thank Mr. Hopkins.
You may step down.
You may call your next witness.
MR. JOHNSTON: John Wiley Price, Your Honor.
THE COURT: Were you sworn earlier, Mr. Price?
MR. PRICE: I was not.
THE COURT: All right. Raise your right hand$ and
the clerk will administer the oath. All right. Raiss your
right hand.
(Witness sworn.)
TEE COURT: Now, before you ask Mr. any
Mr. you are aware of my previous state-
ment of my advice to him on prior occasions when he testified
under oath in court$ are you not?
JOHNSTON: I am, Your and I will advise
him at this time.
THE All right. I want to make sure that
you are aware of it, since you weren't here during these
ALLEN WARD
OFFrCIAL COURT R.PQRT:ER - COURi
R18-4377
DAL.L.AS. T!::XA5 7\5221
1
2
Q
114
Well, what was your understanding?
MR. J'OHNSTON: Well, Your Honor, again I object to
3 speculation as to what her testimony would be, particularly
4 testimony by the U.S. Attorney. I would point out to the
5 court that that issue doesn't seem to be dispositive of the
6 issue of 'whether or not the contract was presented to the
7 by John Price in good faith. It may be of some prob-
8 atlve value but is not dispositive of that issue in any way.
9
THE COURT: I assume Mr 4 Mullins
1
testimony would
10 be dispositive of it as to whether he in fact signed it or
11 didn't sign it.
12
MR. JOHNSTON: It would, Your Honor, but not d18-
13 positive of the issue of whether or not Mr. Price 1n good
14 faith that contract to the bank without knowledge
15 that it was false, his testimony consistently to his
16 attorney was that he did not see Mullins sign that contract,
17 that Mullins was a friend and roommate of his, and he left
18 it at the apartment and returned and it was signed.
19
THE COURT: It Seems to be a very simple thing, if
20 he was a friend and a roommate, to ask the man whether he
21 had signed a and it would be kind of difficult to
22 be presented in good faith w1thout having made some kind of
23 a simple, reasonable inquiry.
24
MR. JOHNSTON: Your Honor, Mr. Price will take the
25 stand and explain that in the future.
ALLEN WARD
CFFlCtAL COURT - FEOi.RALCOURT
R18-4377
O"LLAS. TEXAS 76221
113
1 improvement loans or whether he didn't sign the contract not
2 for home improvement loans, it seems to me that the indict-
3 ment is a very brief, simple statement of the allegations,
4 as the factual resume is. I don't see all of the mystery.
5 Where is the contract? I would like to see it.
6
7
MR. JOHNSTON: I have it here, Your Honor.
THE COURT: What was the testimony of the notary
8 going to be, that in fact she didn't acknowledge it, that
9 they didn't acknowledge their signatures in her presence?
10 MR. BADGER: Your Honor, the testimony of Miss
11 Small, I anticipate, would have been that on May the 1st,
12 1974, she notarized that document but that Mr. Mullins was
13
not present. She acknowledged she notarized a signature
14 and that the signa.ture was not executed in her presence.
15 RECROSS EXAMINATION
<>
16 BY ME. BADGER:
17
Q Is that your understanding of what her testimony
18 would have been, Mr. Hopkins? She worked for you. Is that
19 correct?
20
21
22
23
A
A
As far as I know. I don1t know for sure.
You had talked to her?
Yes, I had talked to her.
And that's your understanding of what her testimony
24 would have been?
25
A Not wholly.
ALLEN WARD
OFFICIAL COURT 'tEPORTe::R COURT
RJ 84377
tlAL.L.A5. TI!:XAS
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Q,
112
That's true.
And you weren't aware at that time that there was
3 what you have characterized as a good faith defense, that is,
4 if the person didn't knowingly submit a false statement, that
5 would be a defense?
6
A That's true. That's not exactly good faith defense
7 I mean good faith to pay the money back would have been a
8 good defense. I would have known that he had entered -- I
9 mean if he had not ~ ~ o w n this was not -- this would have been
10 a defense, had he not known it was not signed.
11
12
MR. JOJL.1IiSTON: No further questions, Your Honor.
THE COURT: Well, I am confused about something.
13
As I understand I haven't seen the contract. I have heard
14 testimony about it on several occasions. I understand that
15 it was acknowledged by a notary in your office, Mr. Hopkins.
~
16
17
THE WITNESS: That's right.
THE COURT: Well, doesn't it state that both
18 signatories to the contract aCknowledge -- she aCknowledged
19 that they appeared and signed the contract in her presence?
20
21
22
23
MR. BADGER: It does, Your Honor.
THE COURT: What was her testimony going to be?
MR. BADGER: Your Honor --
THE COURT: Either the m ~ ~ was there and signed
24 the contract or he didn
1
t and this semantical difference
25 about whether he signed the contract but it wasnft for home
AL.L.EN WARO
OFFICIAL COURT REpORTER. FILClltRAL cOURT
RJ 6-4377
CAL.L.AS, TEXAS 75221
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III
Your Honor, was whether or not, with the time they approached
the courthouse: whether or not there was at that moment an
intention to plead guilty or whether that intention was
formulated once they got into the courtroom and had been
shown; had talked to the Attorney, the U.S.
I
and at that time determined to enter a plea of guilty.
T}m COURT: All right.
Q Is that a fair
A Yes, when he called me over and showed me what he
showed me his case, I couldn't see .- I didn
1
t want to
take the chance of him perjuring himself or being put on
trial for perjury.
Q Well, what was this perjury that you were con-
eerned with?
A Well, as to factual statement that was made
and him making a statement to the and the ract that he
had not entered -- he had entered into contracts, and just
different things, and it was suggested to me by the U.S.
Attorney that he could be prosecuted for perjury.
Q Your client never told you that he saw Mullins
sign that contract, did he?
A He sa,id that he see him. sign it.
Q So for him to testify to that in court would not
be inconsistent with that he previously told you or
1
anyone else under as far as you knew, would it?
ALL-EN WARD
OFFICIAL cOURT APOR'rI!:R . FEOIt$lAL COUFlT
RJ 8-4377
DALLAS, TEXAS 75221
.1
117
1
2 J ORN WILEY PRICE,
3 being first dUly sworn, testified on his oath as follows:
5 BY MR. JOHNSTON:
6
Q Mr. Price, you understand that previous -- well,
7 you are the same John Wiley Price who is the defendant in
8 the case called United States of America versus John Wiley
9 Price?
10
11
12
13
A
Q
A
Yes; I am.
And that's Cause Number 3-76-004?
Yes, I am.
Mr. Price, although I was not present, it's my
14 understanding and the court's understanding that previously
15 you -- under oath -- have plead true or have acknowledged
16 the truth of a factual resume> orally you have acknowledged
17 the truth of a factual reswme, and now you are in the posi-
18 tion of telling the court that that acknowledgment was not
19 true?
20
21
A
Q
sir, I
And you that under some possible con-
22 struction of the law you might open yourself up to a perjury
23 charge?
24
25
A
Q
Yes" sir, I
But you are taking this earliest opportunity to
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QFFICIAL COURT REPORTER FEDEIlAL COURT
R18-4377
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(
118
1 advise the court that you misunderstood the nature of the
2 plea that you were entering at that time, is that correct?
3
4
A
Q
Yes, sir, I am.
All right. Mr. Price, you understand that you are
5 charged by indictment with knowingly SUbmitting a materially
6 false statement to the bank, the Guaranty Bank, 1n order to
7 induce them to make a. home improvement loan to you?
8
9
A
Q
Yes, sir, I am so charged.
And in fact you are now standing in the position
10 of one who has plead guilty and has been sentenced under
11 that charge?
12
13
A
Q
Yes" sir, I do.
Now, you first entered" attempted to enter, a plea
14 1n this court on January the 23rd, 1976, is that correct?
15
16
A Yes, sir, that is correct.
<:.
And at that time the factual resume prepared by
11 the U.s. Attorney was read to you?
18
19
A
Q
Yes, sir, it was.
And, of course, the record is the best evidence of
20 that, but it's my understanding, and you may affirm or deny
21 this, that you attempted to point out to the court that that
22 factual resume was not entirely correct.
23
24
A
Q
Yes, sir, I did.
And then you reappeared in court on February
25 the 13th, did you not?
AL.LEN WARD
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R184:;177
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for
purpose
119
A
Yes"
sir, I believe that's the date.
Q Again for the purposes of entering a- plea of guilt
to the case?
A Yes
Ji
sir
J
I did.
Q. No\"i'!) on both of these occasions, the fa.ctual
,
resume was read, on both the February the 13th and January I
the 23rd, on both occasions is it true that you attemptedj
to explain to the court that there were inaccuracies in that 'I
resume?
A Yes, sir, I did.
Q And let me ask you this. WellJ you have heard the
testimony of Mr. Hopkins here in court. He was representing
you in this case
J
was he not?
A Yes
J
sir, he was.
Q And you had paid him no fee tor his services as
such?
A No, r had not.
Q But were relying on him and Mr. Steele for legal
representa.tion?
A Yes.., sir.
Q They were the only lawyers that you had consulted
regarding this case?
A Yes, sir, they werev
Q Both of these two times, the two times
J
the first
two times that you appeared in court, you appeared for
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1 purpose of entering a plea of guilty, is that correct?
3
A Yes, sir, I did.
Now, were you advised that you should enter a
4 plea of guilty by your legal counsel?
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A
Q
sir, I was.
And what was the nature of your as you
7 understood it?
8
A My the nature -- the basis on which I was enter-
9
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ing a guilty plea was the fact that I had presented to the
bank a contract entered into between a contractor and myself
when in fact I knew that part of the work for home improve-
ment loans and when in fact I knew that part of the work had
already been done and there was a conspiracy to that con-
tract and was guilty of that.
Well, you not a lawyer, are you, Mr. Price?
16
17
A
Q
No, sir, I am not.
And when you use that word "conspiracy,U do you
18 know what it means as a legal term?
19
A Well, no, sir, maybe not. I just know that the
20
word "conspiracy'1 means a party to, guilty as a party to.
21
Q
In the sense that you have just explained to the
22 court, is that correct?
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A
Q
Yes, Bir.
All right. And it's my understanding that the
25
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1 cases, is that correct?
2 A Well, only in the second case. In the first case
3 on the first instance in January the court did not -- made
4 no dec1sion at all, but when I returned I think it was
5 February the 13th or then the court would not
6 accept the plea of guilty.
7 Q Now, the case was set :for' trial on February 15
8 of 1976, is that correct?
9
10
A
Q
Okay. Yes, sir, on February 15th.
Did you consult with your lawyers prior to that
11 time as to what your plea would be before the trying party,
12 either the judge or the jury?
13
A The only thing that -- like I said, we may have
14 talked about it, maybe spent an hour on it. We just said
15 we would plead, we plead guilty, because I was a party,
16 as Mr. Hopkins understood it and I understood it, that I was
17 a party to making a false statement to the bank, when in
18 fact I knew that part of the work had already been done, had
19 already been performed.
20
At any time did you tell your counselor any agent
21 of the government that you knew that that contract had not
22 been signed by Roger Mullins?
23
A No, sir. In fact, I thought it had been and still
24 to this day think that itts a good contract.
25
Q
Well, you came to court, then, on February 15th --
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on March the 15th prepared to plead not guilty?
A Yes, sir.
Q Is that correct?
A On February the 15th?
Q On March 15th.
A On March yes, prepared to plead not
guilty.
Q To whoever the trial of the facts was when the
indictment was read?
A Yes=, sir.
Q During the of the proceedings that took
place in court on the 15th,) were you advised to
change your plea?
A Do you mean on March 15th?
Q On March 1St1\, yes.
A Yes, sir. I think that the jUdge stood
up and we went through it again, I think Mr. Hopkins
asked either the judge and the U.S. Attorney for a little
time,) and then vIe ventured out into the to talk. about
it and at that particular time Mr. Hopkins did advise
me, along with Mr. on how to plead.
Q Do you recall ....rhat rea.soning was given to you for
changing your plea?
A he just said that the odds were stacked
ag&iDst me. He said that) based on what the affidavi:s that
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the U.S. Attorney had shown him and the people that were
present here end what he was told by the U.S. Attorney that
the Witnesses here would testify to, that the odds were
stacked against me, and rather than put the court through a
long proceeding or a trial, that if I pleaded guilty my
chances for probation were a lot better.
Q Did he tell you that, under his understanding of
the law, you were guilty of these charges?
A Yes, sir, his understanding, yes, sir, because
Mr. Hopkins had consistently told me that the -- that how
COQ1d I do the improvements on the house when I didn't get
the money, but then I kept -- my contention to him was that
although I had entered into a contract to do work that I
knew in part had already been done.
Q Were you a d v ~ s e d by your attorneys that in order
to change your plea to guilty that you would have to under
oath state that the factual resume was true?
A Yes, sir. My attorney with me sitting there at
the defense table where you are sitting did approach the . I
U.S9 Attorney and ask him could he change -- could he in fact
change the factual reswne because it didn't agree with what
I had said on previoQs occasions and what I was contending
at that particular time.
Q Were you able to get that resume changed?
A N o ~ sir, he, Mr. Hopkins, was not, and I didn't
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have anything to say.
Q Did Mr. Hopkins advise you to plead guilty as to
the charge despite your objections to the statements in the
factual resume?
A Yes, sir, he did advise me of that.
Q Lfhy did you plead guilty of that charge?
A Because he advised me to plead guilty, and under
the I was under the illusion that without putting the
court through an expensive trial that the chances for proba-
tion were greater, still being under the impression that the
charge, as Mr. Hopkins interpreted it, was that I had
received the money and it hadn't gone for home improvements.
Q In that regard> Mr. Price, for the benefit of the
court, let me ask you if on or about the month of May of 19 -
OT April in 1974 you attempted to secure a home improvement
l o a ~ from the Guaranty Bank in Dallas, Texas?
A Y e s ~ sir, I did.
Q And who did you approach at the bank?
A Mr. Leon Gauthier.
Q Did you know Mr. Gauthier previously?
A Yes, sir. Y e s ~ sir. I had known him a year or so
prior to that time.
Q And had you had other dealings with him and the
bank?
A Yes, sir, I had.
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Q Did you have other loans at the bank?
A Yes, I had had.
Q And were some of those loans outstanding at the
time?
A Yes, sir, they were.
Q Did you approach him with the idea of a home
improvement loan on the house at 3302 Reynolds Avenue?
A I can't say that I approached him. I had several
houses, and that house -- I was doing work on the house, so
I could have, yes, sir.
Q You had previously decided -- had begun doing some
improvements on this house at Reynolds Avenue?
A I had.
Q What sort of property was that?
A It was rental property. I had several rental
properties.
Q And you were using that for income producing
purposes, is that correct?
A sir.
Q Who, if anyone was assisting you in doing the
repairs on the house at Reynolds Avenue?
A There was a little -- a Mike who I had
contracted with to help me do the repairs there, and at that
particular time Rod Mullins in fact was -- had delivered to
the house, to the property there, some wire mesh tO
J
of
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1 course, pour the concrete for the garage out back and had
2 the paint for the interior of the house, to paint
3 the interior of the house.
4
Q
is this the Roger S. Mullins who has been
5 previously referred to 1n this case?
6
7
A
Q
Yes" sir, it is.
And at that time what was Mr. Mullins' relation-
8 ship to you?
9 A Well, we were just partial
10 roommates. had hapgened is he had been divorced from
11 his wife. He was living in a garage apartment immediately
12
13
14
15
behind one of my properties on Reynolds, between Reynoids
and Sp'lTlock, and he was living 1n the garage apartment
there, I guess you would say he was a friend of mine.
He was assisting me.
16
17
Q And you all had shared that apartment at sometime?
Yes, sir, we at various intervals, because
18 when I had left home I went to the apartment.
19
You were in the process of getting a divorce as
20 well; he had just completed a divorce?
21
22
A
Q
Yes, sir.
And so for a time you all just shared that same
23 garage apartment?
24
25
Q
sir, we did.
And were you sharing that garage apartment on or
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1 about May 1974?
2
3 Q
Yes, sir, we were.
How was Mr. Mullins employed and what were his
4- working hours?
5 He had add werking hours. I know at 3525 he was
6 a security guard most of the night, and he was a contractor
7 during the day. He was a contractor. He was a paint
8 contractor.) a contractor in general, did painting, laid con-
9 crete, did all kinds of odds and enos jobs during the day.
10
Q Now, in order for you to get this home improvement
11 loan, was it necessary for you to have a contract and
12 mechanic's lien signed by a contractor, someone who purported
13 to do the
14
15
16
17
A
Q
A
Q
Yes, sir, it was.
And Mr. GautQier advised you of did he not?
Yes, sir, he did.
Did you approach Mr. Rawlins -- I mean Mr. Mullins
18 with regard to performing that service for you?
19
20
21 that.
Q
Yes, sir, I did.
And tell the court whether OT not he agreed to do
22 A Yes, sir, he did. He in fact agreed that since in
23 fact he had poured the concrete porch on that particular
24 structure and he hed poured the carport, and when I say tithe
25 carport, II I mean the slab on the side of the house for a
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1 carport, he had poured that and had deliverea to the house
Z the wire mesh in the garage to pour that out there. What he
4 and he had overege and he too then we would

3 had told me, is what often is when he tidded a job
5 set up forms and do work that anc thatis the way
6 we did the porch and the carport OC side, anc that's the
1 way he hac planned on coing the patio ant the garage out
8 back.
9
Q. All right. Now, did Y0U procure or get ahold of
10 a contract, the required the improvement
11 loa.n?
A
13
A
Yes, I.did.
Where did you get that, if you
I am not sure if I picked it up at the title
15 company or at the tank.:;,
T7
16
7
18
19
Q
Q
But it was --
THE REPORTER: I aGl out of papel" here.
(Recess)
Mr. regardless of you maf or may not
20 have picked up that contract, it wes not one that you pre-
21 pared yourself, it was a form, was it not?
22
23
24
25
Yes, sir. It was prepared by someone else.
Will you mark this now,
(The instrument referred to was
marked DeZendantrs Exhibit
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No.1 for identification.)
Mr. Price, I want to show you what has been marked
3 aa Defendant's Exhibit 1 snd ask you if you can identify
4 tha.t document.
5 A Yes, sir. It
1
s a contract entered into between
6 myself', my wife and Roger S. Mullins.
7 Now, disregarding the handwritten portions and
8 signatures on that document, 1s that an accurate copy of the
9 document that you picked up either at the bank or at the
10 titIe company?
11
12
Po
Q
It seems to be, yes, sir.
And were the typed-in portions as opposed to the
13 printed portions on that contract when you picked it up?
14
15
A Yes, sir, they were, to the best of my knowledge.
MR. Your Honor, at this time, we would
16 offer into evidence Defendant's Exhibit Number 1.
17
18
19
MR. BADGER: No objections.
THE COURT: All right. Defendant's 1 is admitted.
Mr. Price, tell the court what you did with this
20 contract when you picked it up.
21
A Well, when I picked it up, I. tried to call Rod at
22 his last known job, which is at the Willow Creek Apartments.
23 On previous as r stated previously to the
24 that I had journeyed out to the Willow Creek where Rod was
25 painting one day, piCKed him up and carried him over to
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Rod.
contract.
A Clovis -- I have never known the last name --
-==
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wouldn't. I told Clovis to tell him that I would leave the
THE COURT: Okay.
not ready. I carried him back out to Willow Creek. On the
day I got the contract I attempted to call Willow Creek
A Roger That I needed to get in touch with
again. I was told that he was not there that day, that he
THE WITNESS: Yes, sir.
THE COD3T: Who is Rod? Is this tne Roger S.
Q What is her name?
was working at some other job. He was painting the same
paint was stored at the apartment, and oftentimes he
Guaranty Bank, and the contract I was at that time was
complex, but they didn't know where he was, so I in turn
than I WOUld, since as I said he worked for two jobs. His
called his girl friend.
Mullins, whose name is on this contract?
him, because she would see as I said; as much or more
Clovis. I told her, you know, I needed to get in touch with
contract and to get him to sign it, and to the best of my
Roger Mullins and you know, would she be talking to
come by and change clothes at the apertment. Sometimes he
knowledge she eid that; because when I returned I got the

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Q When did you -- approximately what time of day did
2 you leave the contract?

3
A I called -- I don't remember what time it was even
4 when I picked it up. It seemed to be about the I
5 don't remember.
6
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8
How long a period of time passed between the time
that you placed the contract in the apartment and you came
back and picked it up?
9
A Okay. I carried it over there that evening, and
10
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13
I guess around 4:00 otclock, and then I came back the next
morning, because I was coming back to get the mail and other
stuff
3
because I had stayed some other place that night, and
I back to get the contract.
14
Q And referring you to Pages -- the third page and
15 the fourth page of when you returned at that
16 time, is the purported signature of Roger Mullins on this
17 copy the signature that you found when returned?
18
19
20
A
Q
A
Yes, sir, it is.
All right. What did you do then?
I in turn took the contract to Wanda Small, a
21
notary public, to have her notarize
22
23
Q
A
And then what did you do with the contract?
Well, after Wanda notarized it, I took the
24 and I don't know whether I carried it to the bank or the
25
title company. One or the other. I think I delivered it to
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1 the title company. I am not sure. I think it was the bank.
2 I know. I it was the bank. I not sure.
.3 Q
Well, did subsequently deliver the contract to
4 Leon Ga'J.thier?
5 A
Q
Yes
J
I think so.
And it was after that that the money was distrib-
7 uted to you, is that that the loan was
8 consummated?
9
10
A
Q
Yes., sir.
I
did you receive -- you have heard Mr. Gauthierl
11 testify that the bulk of the money, over a thousand dollars
12 of it, went to pay orf some pre-existing notes at the bank?
Ji3
14
15
Q
A
Yes, SiT.
Is that correct?
Yes, I think a little more than the bulk, but to
16 my recollection is that I had at least two pre-existing
17 debts of at least twelve hundred dollars or more, and I think
18 I had on my account. I am not sure, but 1 think
19 it wound up to be around three notes.
20
Q At.any rate, some of it went to a checking account,
21 the bulk of it went to payoff some pre-existing loans?
22
23
A true.
And you had advised Mr. Gauthier, had you not,
24 that work had already been done on the house?
25
A And that part of it and I was doing some of the
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.-
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J A
Specifically what had already been done?
The concrete porch had already been I think
4
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that's in here
J
and the concrete slab on the east side of
the house had already been done, I was at that particular
time getting the paint and stuff to do the interior and
exterior and Textone and so f0rtn.
And you intended to do a lot of that work yourself?
9
10
A
Q
Yes, I did.
Now, after the money was disbursed, you had some
11 financial reverses, did you not?
12
13
14
15
A
Q
A
Q
Yes, sir, I did.
And were you able to payoff this loan?
No, sir, this one and the others, no.
When did become aware that there was
16 some governmental of this matter?
17
A About the latter part of '75, when I was approached
18 by Mr. Walker.
19
Q And what was the nature of your conversation with
20 Mr. Walker?
21 A Well, Mr. Walker presented himself in the office
22 at the law firm there and introduced 'himself, and I in turn
23 introduced myself, and Mr. Hopkins introduced himself, and
24 Mro Walker said he was looking for me, and, of he
25 went on to say what he was looking for me for, and that was
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1 the fix$t time I had ever heard of hie.
2
.3
A
Q
Did he ask you the whereabouts of Mullins?
Yes, sir, he did.
And did you assist him in attempting to locate
5 Mr. Mullins?
6
A At that particular time.9 I told him I did net know
1 and had not known for Bome time where Roger Mullins but
8 at a later date on down the line I was out at the garage
9 apartment one and I in fact told Roger Mullins when
10 he drove up in his paint truck that Mr. Walker was looking
Ii for him.
12
Q Now, Mr. Hopkins has testified, ana have heard
13 him testify, that he asked you to assist him in finding
14 certain including Mr. MUllins?
15
16
117
18
A
Q
Q
Yes,
Is that correct?
Yes, sir.
Did in fact you attempt to give Mr. Hopkins
19 Mullins I phone number?
20
21
22
23
A
Q
A
Q
A
Yes, sir, r did.
Did you attempt to talk to Mr. Mullins yourself?
No, I did not.
wlly not?
.Well, because Mr. Walker had told me on one of t
25 occasions when he was in the office that Mr. Mullins coulc
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with him.

ever talk to Mr. Mullins?
witness.
sir, I did not.
To the best or your knowledge} did Mr. Hopkins
A
Q And Mr. Walker is an F.B.I. agent?
A I shouldn't bother him because he was a possible
Q And so under his instructions you didn't talk to
A No, sir, not to my knowledge. I gave him the
Q Mr. Price, have you learned or did you learn at or
MR. BADGER: Judge, just to the court time, I
A Yes, sir.
possibly be a witness against roe and that I shouldn't tamper
Q You should not talk with Mr. Mullins?
Mr. Mullins?
telephone probably a day prior to that March 15 hear-
ing, that Friday, I thillk, because that heari.ng {.;raE on a
don't think we need to get into that. Tha.t 's a Rule 35
about the time of your sentencing hearing on March 16th that
the presentence report contained a statement that you had
and it doesn't have anything to do with wl:.ether or net bi6
plea was proper.
been found not guilty of theft by false pretenses?
matter. I think it was disposed of at the sentencing inquiry
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THE COURT: I think that's true, Mr. Johnston, and
-
2 I think I also stated at the time the sentencing it's
3 whether it was true or false for the reason that
4 he was -- if the information was false, the false information
5 was that he was found not gUilty, and I certainly -- that
6 would be a complete exoneration -- and I certainly wouldn't
7 that into account in sentencing, and I don't think that
8 would go to the issue of withdrawing his plea of guilty.
9
10
MR. JOHNSTON: I withdraw the question, Your Honor.
THE COURT: All right. Let me a.sk a couple of
11 question, Mr. Price. Did I understand you to state that
12 this loan has not been repaid?
13
THE WITNESS: No, sir, Your Honor. I did make an
14 attempt through my attorneys to pay part of it or half of
15 it,' and I was told at tQat time that nothing outside of the
16 full remittance would be accepted.
17
18 fact is
19
20
21 question.
22
23
THE COURT: I just want to ascertain what the
THE WITI1"ESS: Yes, sir.
THE COURT: -- because I want to ask another
WITNESS: Yes, sir.
THE COURT: The bank has not been repaid the loan,
24 is that correct?
25
THE No, sir, not at this time, Your Honor.
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2 repaid?
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137
TrlE COURT: It's correct that they have not been
THE WITNESS: Yes, sir.
THE COURT: All right. Do you still Otm the
5 property on which this mechanic's lien was granted?
6
THE No, sir, Your Honor. I Olm none
7 of those properties.
8
TEE COURT: At the time that you went into default
9 in the payment of the note, did you own the property on which
10 that is listed in this contract, Defendant's Exhibit 11
11 THE WITNESS: Yes, sir, to the best of my knowledge)
12 I think I still owned it at that time, sixty days after.
13
THE COURT: Well, if this contract is a valid
14 contract, as I read it, it contains an assignment to the
15 Guaranty Bank from S. Mullina. Has the Guaranty Bank,
16 if this is a. valid contract, have th.ey foreclosed the
17 mechanic's lien contract on the property?
18
MR. JOHNSTON: My information, and I didn't ask
19 Mr. Gauthier the question, is that they did not.
20
MR. BADGER: JUdge, it's our information that the
21 contract isn't valid, so they couldn't act under it.
22
23
THE COURT: Well, I was trying to --
MR. BADGER: Also, it was repossessed under the
24 Your Honor. It was not strictly a -- I think that the
25 was involved in it, but it was the bank's understanding,
AL.LEN WARD
Of'F1CtAL, COURT FEDERAL couR'T
R184377
CAL.LAS. TEXAS 7522'
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1 subsequent investigation determineo
3
that the contract and
2 mechanic's lien were invalid, and therefore the bank couldn't
3 act on it anyway.
4 THE COURT: That was my inquiry. Okay. Do you
5 have any questions, Mr. Badger?
6
7
MR. BADGER: Yes, sir.
THE COURT: You may proceed.
8 CROSS E X ~ ~ I N A T I O N
9 BY !\ffi. BADGER:
10
Q
Mr. Price, itfs your understanding that that was a
11 valid contraet
3
is that correct?
12
13
A
Q
Yes, sir, that is right.
That it was a contract, a written contract, which
14 expressed the agreement entered into between you and Roger
15 S. Mullins?
16
17
A
Q
Yes, sir.
It is your contention that you did not know that
18 he was not the one who signed it?
19
20
A
Q
No, sir.
You represented to Mr. Gauthier that that was a
21 valid contract, did you not?
Z2
23
A
Q
Yes, sir, I represented the contract, yes, sir.
All right. And you represented to him that this
24 expressed the agreement entered into between you'and Roger
25 S. Mullins?
ALLENWARO
OFF1ClAL COURT RgpORTER FEDERAL COURT
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139
A Yes, sir.
Q And so when Mr. Gauthier authorized the it
was his understanding based on your representation that
there was a valid is that correct?
A Yea, sir, I guess so.
Q Well
A sir.
Q -- this is the only information that you had given
him?
A Yes, sir.
Q That it was a true contract and it was a true
mechanic's lien?
A Yes" sir.
Q And was it your understanding on May the 1st, 1974,
that you would not get tqat loan if you did not have the
contract and the mechanic's lien? In other that was
essential to the loan, was it not?
A According to }{r. Gauthier's testimony, yes, sir.
Q Well, what was your understanding?
A Well, that I would get the loan because I had the
property to secure it.
Q And that this was -- it was your understanding that
if you did not have a contract and that if you did not have a
mechanic's you would not get the is that correct?
A Yes, I would say that.
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1 Q So it was somewhat material to the authorization
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of the loan, was it not? You are not challenging the
materiality of the contract?
A No, sir.
Q And when you plead guilty on March the 15th on the
advice of your counsel, you understood when you plead guilty
that you were admitting that there was a valid contract, tha'
there was a contract offered, but that you -- that Price
9 excuse me -- let me withdraw that and start over. You under
10 stood what you were charged with, did you not, on March
A
11 the 15th?
12
With my attorney's interpretation of what I was
13
charged with, yes, sir.
14
Q
You understood that the government intended to
15 prove by its case tQat the contract was a forgery, that some
16 body other than Roger Mullins had signed it?
17
18 sir.
19
A No, sir. Forgery never even entered into it, no,
Well, you understood that we intended to show that
20
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22
you knew that Mullins had not signed that contract? That
was our case. I am not saying that you agreed with that. I
,
am saying you understood that that was our case, did you not'
23
24
A
Q
Yes, sir, I guess so. I am not sure.
Did you understand that we intended to show that
ALLEN WARD
25
you had presented a'contract, knowing that it had not been
1
CP'P'ICIAL. COURT REPORTER COU Rl'
R184S77
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signed by Roger Mullins, that's what we intended to prove?
A Yes, sir, one of the things you intended to prove.
Q All right. You .knew that thatls what we were
charging you with? I am not saying that you agree that it
was true, but you understood that thatls what you were
charged with, is that correct? Would y,0u answer?
A I am not really sure, Mr. Eadger. I think essen-
tially, but I am not really sure. The only thing I under-
stood on that particular day that my attorney told me to
plead guilty, to plead guilty, and there was Borne reluctance
on my part. I did not want to plead to the factual resume,
but he told me I had to plead to it because he said that was
all you would accept.
Q All right. Now, the part that you were reluctant
to agree to was the part that you knew that Mullins had not
<>
signed the contract, 1s that correct?
A Right, y e s ~ sir.
Q
And so you knew what the charge was?
A Yes, sir, I guess so.
Q And it's your contention, knowing what the charge
was and what you would have to admit i ~ order tc enter a
valid plea that this court would accept, you went ahead and
entered a plea of guilty?
A Y e s ~ air, on the advice of my' attorney.
Q And this decision on your .part was based on your
Al..LEN WARD
O'f',CtALCOURT REoPORTER I"'Ii:O.l!RAL COURT
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DALLAB, TEXAB 752%1
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.i
satisfied.
that correct?
this motion?
A Yes, eire
why he filed the motion, whether he was objecting
MR. BADGER: 1 am trying to find out what his
Q well, this is what you were seeking by a plea of
A No, sir, I wouldn't say that I w o ~ l d have been
Q And if you had gotten probation, you would have
A Yes, sir, that's what my attorney --
TEE COURT: Well, I will overrule the objection.
Q Mr. Price, you plead guilty in hopes that you would
hope that this would enhance your chances for probation, 1s
they would have done under thoee circumstances.
to the plea or objecting to the court's sentence.
Q All right. If you had received probation from
JUdge Porter on March the 16th, 1976, would you have filed
MR. JOHliSTON: Object. It's speculative, Your
Honor.
l'.ffi BADGER: It's not speculative, Your Honor.
He knows what he would have done.
MR. JOHNSTON: Oh, Your Honor, no one knows what
get probation, is that correct?
rea.son
If he can answer it, then I will let him answer.
-oeen satisfied, would you have not?
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ALLENWARC
OFFICIAL COUR-r REPORTER & FEDERAL. COURT
R18.4377
DA1.L"S, TEXAS 7$221
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1 guil ty wasn t tit?
2 A That' 6 wha.t my attorney seeking for me. That si
I
3 what he wanted for me. He thought that was the best thing
4 for under his and thought that was the best
5 thing fOT me. I wouldn
1
t have been no, SiT.
Would you have gone out anc hired Mr. to file this
Let t s assume tha,t on March the 16th" All right.
I
1976, Judge Porter had se.io.? /'1 will suspend t!1.e imposition 1
of sentenCe and pl""e you or. probation for a perioa- of time."I
f
i
8
7
6
9
J1.0 motion?
In A If he had me on
12
Q
Yes.
13
.A I really don't know" Mr. Badger
14 Isn't it a fact that that's the only reason we are
15 here in court today is ..:,becallse JUdge Porter gave you a
16 period of time to serve in the federal correctional institu-
Jl7 t1on?
18
19
20
MR. JOHiiSTON: Your Honor, the has answered
the question directly and has answered it the only way anyoneI
could answer the question, I don't think he should have that
21 repeatedly put him.
22 THE COURT: Well, I'll the objection. He
23 says he coesn't
24
J
Mr. I don't want to go into the facts of the
25 case that much, but I believe that you said that the east
ALLEN WARD
OFFlCIA.L COURT RZ,..ORT!::A COURT
R184377
OAL.L.AS, TEXAS 75221
t,. . .
.144
1 slab of the house had already been done, is that correct)
2 when you applied :for this loa..."1?
3 A The carport on the eaat side of the house had
4 already been done.
5
6 side?
Q Are you talking about the east side or the west
7 Ii No, sir. I am talking about the west side. You
8
9
10
11
12
13
are right. It's the west side. I am sorry.
Q, It's the west side of the house?
A Yes, sir. Yes,. sir.
Q
The west side had been done?
A Yes, sir. There is no room to do it. You. can't
pour a carport on the east side.
14 Q And, of course, the contract calls for work to be
15 aone on the east side of the house, does it not, sir, didn't
16 say anything about the west side?
17
18
A
Q
Yes, sir. Yes, sir, it sure does.
And it's your testimony here in court today that
19 you told Mr. Gauthier that that slab had already been done?
20
21
22
23
24
25
A
A
A
Yes, sir, it 1s.
And it hadn't been done, is that correct?
No, it's impossible. It can't be done.
So your testimony before was incorrect?
With reference to the sides of the house, yes, sir.
Okay.
ALLEN WARD
OPFlClAL COURT A:EPORTER - FI!!:DI!:JtAL COURT
~ l 04377
DAl-l-AS. TIlXAS 7 5 2 ~ 1
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There is not -- Mr. Badger, there Is not five feet
2 separating the properties on the east side of the house.
3 There is not five feet there.
4
S
6
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8
A
Q
A
All right.
It's no way.
All right.
But it's on the west side.
And the porch which you are referring to, which
9 porch was already done?
10
11
A
Q
Well, both of them, the front one and the rear one.
Of course, the rear one was done when the house
12 was bUilt, wasn't it?
13
A Right. Not when it was built, but when I purchased
14 it it was.
IS
16
17
Q
A
Q
Back three O ~ four years before?
Yes, sir.
And the front porch was done about two years before
18
1974 by Mr. Mullins, was it not?
19
20
A
was done
No, sir, it was not done that far in advance. It
oh, we had done -- I don't remember exactly when
21
22
23
we had done it, but it hadn't been done that long because
the wood porch stood and I was still living in that partic-
ular house at the time that it was done.
24
Q Wel1
3
when was the east slab done -- I mean the
25 west slab done?
ALLEN WARD
O,.,.ICIAL COURT REPORTER FEDERAL COURY
RI lJ-4377
DAI..LAS. nxAS 715221
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146
1 A The west slab?
2 Q That was done two years before, wasn1t it?
3 A No, sir, because it was done after the porch was
4 done. He called me the one morning, and it was done after
5 the porch was done.
6
Q All right. I am not going to get into the facts
7 that much more. Your testimony" you do change your testimoni
8
today about which side of the house had already been done?
9
10
A
Q
Yes, sir, you are right.
And your contract was to do work on the east side,
11 and it was a physical impossibility to do work on the east
12 side, is that correct?
13
A Yes, sir, there is no way. I would be in somebody
14 elsers house if I tried to put it on the east side.
IS
Q Now, at th@ time that the loan was -- the proceeds
16
17
18
of the loan were distributed to you, two of your prior loans
were retired, were they not, they were paid off?
Yes, sir.
19
Q And approximately six hundred dollars, give or
20
21
take a hundred dollars, was deposited into your checking
account, is that correct?
22
23
Ii
Q
To the best of my knowledge.
And as the bank's position steod, the bank thought
24
25
that they then had a meChanic's lien on a house for eighteen
hundred and fifty dollars, is that correct?
ALLEN WARD
OFf"ICEAL C:OURT RE:PORTER p'_CaRAL.. COURT
RI 8.4377
bALLAS. TEXAS 75221
1
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A
14/
sir, thatis correct.
A loan secured by a piece of real is that
3 correct?
4
s
A Yes, sir.
So the bank had actually improved its position by
6 entering into this loan, had they not?
7
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A
Q,
A
Yes, sir, I guess they hed. They thought they had
They had a secured now
Yes, sir.
-- rather than two unsecured loans, is that carree
Yes, sir. Yes, sir.
And they got part of the six hundred if you
13 were overdrawn?
14
15
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17
18
Ii Yes, sir.
Q
So they
A
Yes"
sir.
Q
Except for
off?
enhanced their had they not?
the fact that you never paid the loan
19
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A
Ii
Yes, sir.
So it was a good deal for the wasntt it?
22
23
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1Mr.
Q If this was a valid contract?
A Yes, sir.
Q Now" you were re9resented by both Mr. Hopkins
Steele, is that correct?
ALLEN WARD
OPP'JCIAL COURT F'EOE.RAL COURT
RI B-4S77
CALLAS. TEXAli 75221
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A
Q
.A
Q
148
sir, I guess so.
They both counseled you and advised you?
Yes" sir
And when you entered plee of guilty on March
5 the 15th, you knew that you were arlmitticg to the court under
6
1
oath that you knew that the contract was false and never
entered into by you and Roger S. Mullins?
8 MR. JOHNSTON: Your Honor, I object to that being
9 read unless it's read in its entirety.
liO
11
12
Q
Q
To make home on this house?
Yes, in its as my counsel stated.
You admitted, you agreed, that you to this
13
court under oath that you that the ccntract was false
and never entered into by you and Roger Mullins to make home
15 improvements on this house?
16
17
18
A
Yes, sir, that 1s true.
And it is contention that that is net true?
If you read it just as you have read it, to do the
19
20
21
22
23
24
25
home improvements the house, then there is no way, because
I didn't get the money to do the home improvements, based on
what you just read$ but the contract --
MR. BADGER: I have no further Questions, Judge.
MFa I have nothing furtner j Your Hop-or.
THE COURT: All right. You may step cown, Mr. Pr1c
There has been a lot of conversa.tion about not
ALLEN WARD
O"'PICIALCOURT Rl!!pORTl!rt. FI!Ol!!.RAL.COUR"
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being able to get the factual basis but the factual
basis is the tasis established by the court before entering
judgment on a plea, in accepting a plea. of' guilty under
Rule 11, and that is precisely Why I twice rejected the plea,
I satisfied myself on the third attempt that there was
6
a factual basis, so it isn't a question of getting the United
7 states Attorney or anybody else to agree to it. That's what
8
9
10
11
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13
we are in court for, and that's wr.y I ascertained from each
defendant that the statement is true and correct
J
and I
ascertained that from Mr. Price, and I asked him if he wished
to amend or modify the statement in any way, and he stated
"No, II and I don't u.nderstand that -- I mean my view 1s that
these things aren't to be taken lightly. The man is u.nder
oath, as all people are in here, and it isn't whether the
15 government agrees. often don't agree with positions I
16 take. Whether they agreed to a change 1n the factual
17
18
19
20
21
the basis, the point of it is to establish a factual basis
to my satisfaction, and I gave Mr. Price many opportunities
to do that, and he testified under oath that that was true
and correct and he didn't wish to modify or change it in any
manner, so I want it to be made clear that this isn't some-
22 thing that is negotiated with somebody else. This is a
23 matter that the court has to determine based cn sworn tes-
24 timony, that's the purpose of the and that's why
25
I so advise every defendant in this court. By the same
ALLEN WARD
OF.P'IC,AL COURT RI!:PORTER FECERA,1. COURT
R18-4S77
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token, I advise them that they are under oath on the record
in the presence of counsel and that they put themselves in
jeopardy of perjury if they testify falsely, and it isn't
something that I take lightly to with the testimony
under oath; and so I want it tc be clear in this proceedings
that it would have been a very simple matter to have gotten
somebody to have changed the factual basis, that just to
testify to the under oath in open court, and then there
is either a factual basis or there isn't.
MR. BADGER: Judge, I don't think Mr. Johnston has
11 any witnesses to call. We would like to call Mr. Steele
12 to the stand. He 18 the other attorney representing
13 Mr. Price.
14
15
16 Honor.
17
THE COURT: All right. Do you rest on your motion?
MR. JOHNSTON: We would rest on the motion, Your
THE All right. You may call Mr. Steele,

18
19
20
21
Mr. Marshal.
How long do you your --
MR. BADGER: Not long, Your Honor.
THE COURT: Well, I was just thinking. For the
22 convenience of if it would just take a few minutes,
23 we will go ahead and wind it up.
24
25
JOHNSTON: I would prefer, Your Honor.
THE COURT: Because I have some other matters, too.
ALLEN WARD
OFP'lClA.L COURT fl'I!OIi.RAl. COURT
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You may have to spell your first name for Mr. We.rd.
ALLEN WARD
OFHCIAL COl,/IlT ""PORTI:R FEO"rv.L COURT
RI a-4377
DALL.AS, Tr;)(AS 7&221
r: :.
2 CLEOPHUS R. STEELE, JR.,
152
3 teing firet duly testified on his oath as
4 DIRECT
5 BY i\ffi. :E1.ADGER:
6
7
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9
ll.0
11
Q,
A
Q.
A
State your please$ sir.
Cleophus Jr.
you were sworn, were you not?
Yes, I was.
And how are you Mr. Steele?
I a justice of the peace for Dallas County and
12 a private practice of law.
13
14
All right. And how long have you an attorney?
Since 1970, May of -- Mayor September of
15 whenever I was in. <:.
16 All right. And you say you are a justice of the
17 peace here in Dallas COi.Lllty?
18
19
20
21
22
23
24
25
A
A
Q
A
Q
A
Q
that's correct.
What precinct or place is that?
Precinct 8$ Place 2.
How long have been in that position
3
sir?
Since 1st.
Of this year?
That's ccrrect.
Do you know the defendant in this case?
ALLEN WARD
OFFICIA.L. COURT ..... DERAL COURT
Rl 84"7
DALLAS, TEl'AIS 71522'
153
A I do.
Q If you see him in ccurt today; would you point at
him, please, sir
J
and identify him by
A He is John Price
J
the second from my right at
counsel table.
Q All right. Hmo!" long have .You known Mr. Price?
A I would say since 1970.
Q All right. How did you get to know him?
A After getting out of la!ll school, I was employed by
Legal Services. Well, I was employed by Legal Services
before I got out of law school} and I would see him downtown,
around and about.
Q Did he ever work for you?
A Yes.
Q When did he
A He still does.
Q He still works for you?
A Yes.
Q And what is his position?
A He is the administra.tive assistant of the court.
Q Of the justice of the peace court?
A Uh-huh.
Q Does he work for you in your private practice now?
A He did once. He doesn't now.
Q All right. During what period of time did he work
ALLEN WARO
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for you and Mr. Hopkins, I take it, in your practice of law?
A From about '72 until January 1st.
Q Of this year?
A Yes.
Q So he was employed by you in the spring of 1974?
A Yes.
Q And you and Mr. James Hopkins, who previously
testified in this court, were law partners during that time,
is that correct?
A That's correct.
Q And you had a secretary by the name of Wanda Small?
A That's correct.
Q Now, what sort of duties did Mr. Price perform for
you?
A Oh, I guess we classify him as a paralegal. What-
<:.
ever assignment we gave him to do.
~ All right. He assisted you in your practice of
law, is that correct?
A Yes.
Q All right. Now, did you and Mr. Hopkins represent
Mr. Price in the case that is n o ~ before this court, not
necessarily this motion but the substantive case? Let me
rephrase it. Did you appear in court with him?
A Yes.
Q Did you act as his counsel in court?
ALLEN WARD
OFFICIAl.. COURT REPORTER: FIii:OERAL. COUItT
RJ 8.4377
DALLAS. TEXAS 7$221
t4U;::;:;!t' ;::us:
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A
Q
Well, my partner did.
Well, you were present at all of the proceedings,
3 were you not?
4
5
A
Q
Yes.
Did you ever offer any advice or counsel to
6 Mr. Price in regard to this case?
7
8
A
Q
Yes.
Both factually and legally, did you discuss the
9 case with him?
10
11
A I would say factually I did.
ticn part or it to Hopkins.
I left the representl
12
Q
l-lhat do you mean by, I$left the representation
13 portionII ?
14
A Well, when all of this first developed and it
15
16
17
18
19
appeared that he would need a lawyer him, When he came
<;,
to me with this problem, I told him that he would have
that we would have to use Hopkins namew1se, I suppose, to
represent him or to appear with him as counsel, he being
employed by the court, end I really dontt take any more
20 criminal cases. I didn't figure I could represent him, at
21 least we didn't feel that I should represent him, and so we
22 just sort put that off on Hopkine.
23
Q All right. But you did counsel him, did you not,
24 advise him on what he should or should not do?
2S
A I would say I did to an extent) yes. I tried --
ALLEN WARD
O'Ft='lCIAL COURT REPO.RiEfZ COURT
R18-4377
CALLAS, TEXAS 752.2.1
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we tried to do the things through Hopkins, although I did
talk with Price and we did discuss the case a lot, yes.
156
3
You were present for his arraignment on January
4 the 23rd J were you not?
5
6
A
Q
Yes.
And you were present on February 13th when he
7 again entered a plea of guiltYJ were you not?
8
9
Is Yes.
And did you address the court at times during
10 those proceedings as counsel ror Mr. Price?
11 I addressed the court as a cha.racter witnes 6 for
12 him during the sentencing phase, I after he had
13 entered his plea.
14
15
But you never said anything to the court prior to
March the 16th?
16
17
A
Q
No, not that I recall.
On March the 15th, were you here when he was set
18 for trial?
19
20
A
Q
Yes.
Okay. And that was set for trial at 9:30 in the
21 morning, was it not?
22
23
A Yes.
And between 9:30 and 10:30, there was a great deal
24 of talking counseling and decision making going on
25 between Mr. Price and Mr. Hopkins and yourself, was there
ALLEN WARD
OP"'ICIAl. COURT ftI!:PORT!:FI: P"ECiI[AAL. COURT
RIIl-4377
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A
Q
that's correct.
And the subject of this conversation was as to
157
3 whether or not Mr. Price should enter a plea of gUilty or
4 not is that correct?
5
6
1
8
A
Q
A
Q
That basically 1s correct
3
yes.
And did you assist in this decision-making process?
I did.
You threw in your two cents for what it was worth,
9 is that correct?
10
A I recall discussing the matter with you and
11 Hopkins, yes.
12
Q All right. Did you discuss it with Mr. Price
13
standing out here in the hall?
14
15
A
Q.
We did discuss it with yes.
What was your to him as to whether he should
16 enter a plea of guilty or not guilty?
17
A I recall whether I advised him or whether or
18 not Hopkins advised him. I know Hopkins advised him how to
19
20
plead. I don't think I told him how to plead necessarily.
I discussed the matter with Hopkins. Hopkins and I talked
21 about it rather than presenting two or three different things
22 to Price. Hopkins just told Price what to do.
23 Q wnat was your opinion as to what he should do at
24 that time?
25
A At that time, my opinion was that he should plead
ALLEN WARD
OF'''ICIAI.. COURT RII'fIORTItR JI'[.CIit:RA.L COURT
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CAL-l.AS. TEXAS 7'221
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A No, we knew what he had to say ebcut it. It was
the factual that was involved in case. This
Q I mean you were considering what he had to
opposed to what his evidence case would is that cor-
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A Based on our conversations with yes.
Q And aleo Mr. Price?
A Based on the way that the case was shaping up
Based on the evidence which I adtr1sed you and
A No, we knew what he had to say ecout it.
told you hac happened?
A Our opinion -- my opinion was that he should enter
I underst&iU but your opinion as to whether
say as well as what I contended our case is that
Mr. Hopkins of what our case would be and alec what Price
against us.
Q And why did you feel that he should plead gUilty?
gu.ilty.
what we discussed with
the hearing. After discussing the matter with you, we
wes always the case through the first couple of up
a reeult of your considering what our evidence would be as
correct?
the plea of guilty. I didn't think that he shculd agree to
rect? Obviously you have got to hear both sides.
he should enter a plea of guilty or not guilty was formed as
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1 decided for him to go ahead and tell him to plead to the
2 factual basis, also.
-
3
Q So are you testifying that he had told you that
4 the fao tual was wrong?
5 A Oh, yes, he had always contended that the factual
6 part was wrong.
7 Q
And it was your advice to him to plead guilty,
8 admitting those facta to be true, when you knew that he
9 contended that they were false?
10
11
A
Q
Yes.
You are testifying that you advised a client to
12 plead guilty to something for which he contended he was
13 innocent '?
14 A I am not so sure I advised him -- that I advised
15 him to testify. I know that Hopkins and I concluded that
<>
16 that's how he should plead, and I think..Hopklns 1s the one
17 that told him to do it, b ~ t we came to that conclusion, yes.
18 Mr. Steele, in reaching this opinion or conclusion
19 as to what course of action Mr. Price should take, did you
20 take into consideration whether you believed Mr. Price as to
21 what he was saying?
22
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A
Q
I suppose that I did.
And isn't it -- did you believe that what he was
24 telling you was the truth, the whole truth, and nething but
25 the t r u t h ~ so help you God?
ALLEN WARD
OFFiCiAL. COURT RIil:PORTER FEC:;:RAI-COURT
Rl B-4377
DALLAS. TEXAS 762.21
Yes.
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Did I believe what he was telling me was the truth?}
I
I had no reason to disbelieve it necessarily.
So you believed he was telling -- you believed he
5 was telling you the truth when he said he was innocent, and
6 yet you were aavising him to plead guilty?
Q
1
8 innocent
9
Well; now, wait a you say he was
Well, he was telling you facts which you knew
10 amounted to a defense, did you
11
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A
Q
Well --
He was contending to you --
MR. JOHNSTON: Your Honor, the witness deserves a
14 chance to answer that question.
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A
We are not ge sure --
THE COURT: Let him answer.
We are not so sure that the defense, as we would
18 have contended it, would have necessarily have made him
19 innocent. I knew that .his factual resume was different
20 from that presented by the
21
Q But you knew that he would have to admit to those
22 facts here in court, which we read?
23
A We knew that in order for him to enter his plea of
24 OT at least you told us that in order for him to
25 enter his plea. of guilty;; he would have to ag:-ee to those
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OFFICIAl. COUI'tT R(PQRTI!:R I""Iii:D.ERAL COUMT
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DALLAS, TEXAS 75221
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1 facts.
2 Q
And that was because Judge Porter would not accept
3 the plea for anything short of that, is that correct?
4 A Wellj you indicated that you wouldn't accept it
5 either.
6
Q
That's not my whether to accept a plea;
7 that's JUdge Porter's decision. We had tried twice before
8 for him to enter a plea of guilty, had we not?
9
10
A
Q
That is correct.
And on both occasions Judge Porter had rejected the
11 plea?
12
13
A That is correct.
Did you understand that the government's case
14 alleged that the contract which was presented to the bank
15 was a contract which knew he had not entered into with
16 Mr. Roger S. Mullins?
17
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A
A
Q
Did I know that that was the allegation?
Yes.
Yes, I knew that was the allegation.
Did you advise Mr. Price that that was the allega-
21 t1on?
22
23
A
Q
Yes.
And so at the time that he entered his plea he had
24 been advised by both you and Mr. Hopkins that the gist of
25 the government's case was that there was no contract at all
ALLEN WARD
OFFICIAL COURT Rl!JI'ORTI!R F!:OEItAL C:OURT
R184377
DAL.LAS, TEXAS 7522 t
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1 and he knew it?
2
4
Well --
That1e what the indictment says, does it net?
There is a false statement part to the indictment.
5 I am not sure tr.at that is the only thing involved in the
6 indictment.
7 MR. JOHNSTON: Your Honors may we supply counsel
8 with a copy of the indictment and the factual resume so he
9 may refresh his memory?
Jl.O
u. A
THE COI,JRT: Yes, you may.
Your Honor, there is reference to a materially
12 raIse statement in the indictment, along with the contractua
13 part that you ere speaking of.
14
Q Mr. the last part of that indictment says,
1S
Il when in truth and fect;" as John Price \Olell knew,
16 had not entered into a contract with e Roger S. Mullins for
17 home improvements at the defendant:s heme at 3302 Reynolds
18 Avenue j Da.llas, Texas. H Now, the.t was the gist of the gov-
119
20
21
errunsnt's case, as you undsrstood it: was it not j sir> that
the contract was nonexistent?
Well, this was supposedly in violation of a certain.
22 section of the code which has to do with false statements.
23 You could say that the contract be the gist of it, if
25
You underscaoc that the contract was the critical
ALLEN WARD
QP'P"ICIA.... COURT REPORiER FZ:OERAL COURT
RI6-437'7
OA.I.I.AS, TEXAS '7!S22\
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part of it?
A Yes.
Q And you also understood that Mr. Price, that the
critical part was that Mr. Price knew that it was not a
valid contract?
A That was our argQment all along. That was one of
the problems we were having with the whole case with you 1s
we werenft adressing
MR. JOHNSTON: Your Honor, would you instruct the
u.s. Attorney to allow the witness to complete his answer to
the question?
THE Let him answer the question.
A We weren't addressing ourselves to the fact about
which -- I mean we were not completely, totally relying upon
this contract. We were about the fact that the
monies involved, this was a loan transaction, and the monies
involved were going to retire certain other loans, when in
fact it was supposed, the way the contract was drawn up or
something, it was supposed to go to home improvement, so
that the false statement part, if you look at it from the
standpoint of the monies going for a different purpose,
whether or not this other part was entered into. I don't
know. Are we supposed to be going into the
Q Well, without going into that, Mr. Steele, is it
your today or your opinion today that your
ALLEN WARD
OFFfCIAL. COURT R&:PORTER FIii:DIii:RAL COURT
84377
DAI.L.AS, 75221
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1 advice, Mr. Hopkins' advice, to enter a plea of guilty was
2 bad advice?
3 A I would think so, yes.
So it's your testimony that you inadequately
5 represented him at that time?
6
I don't think we represented him. I don't
7 know about the inadequate or not. I don r t think we
8
represented him at all in that we entered a plea of guilty,
9 in that We didn't try the case. I don't think he should have
10 entered a guilty plea at this point in time.
11
And you think that you and Mr. Hopkins were in
12 error in doing that?
13
14
A Yes.
MR. BADGER: I have no further questions, Your
15 Honor.
16
t;;.
MR. JOHNSTON: No questions, Your Honor.
17
THE COURT: All right. You may step down,
18 Mr. Steele.
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MR. BADGER: Judge, I have nothing further.
MRQ JOHNSTON: We close, Your Honor.
THE All right. I suspended the execution
22 of sentence until April I believe
J
is that correct?
23
24
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MR. JOHNSTON: April 6, I believe.
THE COURT: April the 6th. I want to look at the
record in some of the prior hearings that we have had, so I
ALLEN WARO
OFFICIA.l. COUR" REPORTER C:;OURT
RJ S-43'77
DALl.AS, TEXAS 75221
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1 will take this unaer advisement, and I will advise you not
2 later than Friday of my rUling and perhaps earlier, as soon
3 as I can get the record. So do either of you have anything
4 further?
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ME. BADGER: No, Your Honor.
MR. JOHNSTON: Nothing further.
THE COURT: So I will advise you on or before
Friday at 5:00 p.m. of my ruling, and we will stand in
recess.
MR. Thank you.
THE MARSHAL: All rise.
AL.L.EN WARD
OF"JC1A.L. cOURT FEOERA.l. couftT
RI8-437'7
DALLAS, TEXA$ 7522\
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RICHARD WARD, certify that during the trial
of the foregoing-styled and numbered cause I was the
official stenotype reporter and took in stenotypy the
proceedings of said trial and have transcribed the same
as shown by the above and foregoing 166 pages and that
said transcript is true and correct.
This 8th day of 1976.
ALLEN WARD
COURT R&;PORlYR "EDl:RAL cOURT
Rl a-4377
DAt.l-A$. TEXAS 7$22'

3 76 CR 004 - John Wiley Price Hearing Transcripts

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3 76 CR 004 - John Wiley Price Hearing Transcripts

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1

1 they did. I think that all Hopkins and I can do was to

16 his motion about Mr. Gauthier knowing something, but that's

the bank could handle home improvement loans at their

2 you leave the contract?

THE All right. You may call Mr. Steele,

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