UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
UNITED STATES OF AMERICA, ) NO. 5:03-CR-037-C
PLAINTIFF, )
)
VS. ) LUBBOCK, TEXAS
)
THOMAS CAMPBELL BUTLER, M.D., )
DEFENDANT. ) MARCH 10, 2004
-----------------------------------------------------
EXCERPT FROM SENTENCING HEARING
BEFORE THE HONORABLE SAM R. CUMMINGS,
UNITED STATES DISTRICT JUDGE
-----------------------------------------------------
OFFICIAL COURT REPORTER: MECHELLE DANIEL, 1205 TEXAS AVENUE,
LUBBOCK, TEXAS 79401; (806) 744-7667.
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
PRODUCED BY COMPUTER.
* * * * *
(HEARING CONTINUED AFTER A LUNCH RECESS)
THE COURT: All right. Before the court imposes
sentence, I will call upon each of the attorneys for the
government and defense. Is there anything else which you wish
to state to the court this afternoon?
MR. BAKER: Not for the government, Your Honor.
MR. HOLDER: Not for the defense, Your Honor.
THE COURT: All right. Dr. Butler, if you would
please come around here and stand at the lectern with your
attorney.
Dr. Butler, you have the right to address the court
this afternoon prior to the imposition of sentence. You are
not required to say anything, should that be your choice, but
the law does afford you that right and opportunity. Is there
anything which you wish to state to the court this afternoon?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right, sir.
THE DEFENDANT: Your Honor, I humbly ask that you
sentence me to community service and no prison time. I don't
want to go to prison. I went there for six days in January of
last year, and this was a great trauma for me and my family. I
can better serve society by working at the South Plains Food
Bank and the Breed Love Dehydrated Foods to help feed the poor
and hungry people of Lubbock and elsewhere in the world. I
have an offer from them for full-time work. I also have an
offer for part-time work at Hospice of Lubbock caring for dying
patients. During my whole career, I have worked to help people
through my teaching at universities, patient care, and research
projects at universities and in foreign countries. Please let
me continue helping people.
Your Honor, I'm deeply sorry this whole thing has
happened. I never imagined that my research on plague
treatment and reporting missing vials in the laboratory would
lead to a criminal procedure and trial. At no time did I
intend to break laws or mislead anyone. This investigation has
been painful to me and my family. My reputation was destroyed.
I lost my tenured job. I lost my medical license. I've heard
the verdict of the jury, but I'm not here to discuss or argue
that today.
Your Honor, please consider in your sentencing that
my contracts with drug companies were to consult on new
experimental drugs. These contracts benefited Texas Tech by
bringing some national reputation and adding money to the
university for my salary and research expenses. I resolved our
dispute with Texas Tech and paid the money that they requested.
Please consider also that my export of bacteria to
Tanzania was done for humanitarian reasons. The bacteria
belonged to the Government of Tanzania, and I had agreed to
return them, after they had been tested in the United States at
the CDC, so that the Tanzanians could continue their research
in this area that we started together. The specimens arrived
safely. No one was harmed.
For these reasons, won't you please be lenient and
allow me to remain with my family and do community service?
Thank you.
THE COURT: All right, sir. Dr. Butler, you were
found not guilty on Counts 2, 5, 6, 7, 49 through 61, and 65
through 69, and you are now discharged as to those counts.
However, you were found guilty pursuant to a jury
verdict on Counts 1, 3, 4, 8 through 48, and Counts 62 through
64. You having been found guilty of those counts pursuant to a
jury verdict, I am now finding you guilty and adjudging you
guilty of those offenses.
Having adjudged you guilty, I am now going to impose
the following sentence:
First, I'm ordering that you pay a special assessment
of $4,700, which is due immediately.
Next, I'm ordering that you be committed to the
custody of the United States Bureau of Prisons for a term of
24 months as to each count, with the terms of imprisonment to
run concurrently with each other. I will allow you to
voluntarily surrender to the institution designated on or
before April the 14th at 2:00 p.m.
Upon your release from incarceration, I'm ordering
that you serve a 3-year term of supervised release. You will
get a copy of the judgment so you will know what the conditions
of supervision are. There are some standard conditions, as
well as special conditions.
Some of those special conditions include the
following:
First, you shall pay restitution in the amount of
$38,675 payable to the United States District Clerk in Lubbock,
Texas, for disbursement to the Texas Tech University Health
Science Center. I will allow you to make restitution over a
period of time as set forth in the judgment.
Another special condition of supervision is that you
shall pay a fine to the United States in the amount of $15,000.
Another special condition is that you shall refrain
from incurring any new credit charges or opening any additional
lines of credit without first getting the approval of the
United States Probation Office.
Next, you shall provide to the United States
Probation Office any requested financial information.
Finally, you shall participate in any mental health
treatment service as directed by the United States Probation
Office.
I will now state on the record the specific reasons
for imposing the sentence I have just imposed.
As to the term of incarceration, the guideline range
is 78 to 97 months. I have made a substantial downward
departure and have imposed a term of 24 months' incarceration
as to each count, with that sentence to run concurrent as to
each count. I believe this sentence does adequately address
the sentencing objectives of punishment and deterrence, and I
will state on the record the reasons for making my downward
departure in just a minute.
The order of restitution and fine are made for the
reason I believe that, under the record before me, such
restitution and fine are justified and do meet the ends of
justice in this case.
The supervised release is imposed for the reason I
believe the defendant will need this amount of supervision to
see that he reassimilates himself back in society, that he
obtains suitable employment, that he maintains a law-abiding
life-style, that he pays the restitution and the fine.
The special assessment of $4,700 is imposed because
the law mandates that it be imposed. That's $100 as to each
count of conviction.
I will now state on the record the reasons for making
the downward departure that I have just made.
Very few cases brought before this court have the
potential to impact not only science, education, medicine, and
research, but society as a whole by the restrictions and
limitations placed on the transportation of hazardous and
biological material as they relate to medical and academic
research.
This court in no fashion condones the actions taken
by the defendant in his illegal transportation of yersinia
pestis to Tanzania. However, the court is of the opinion that
while the defendant's actions are covered by Section 2M5.1 of
the guidelines, mitigating circumstances exist to such a degree
that the court does not believe a base offense level of 26
adequately achieves the desired outcome of the United States
Sentencing Commission in their formulation of the United States
Sentencing Guidelines. As a result, the court considers that
the defendant's conduct regarding his conviction for
unauthorized export to Tanzania is outside the heartland of the
guidelines as noted in Section 5K2.0 and the application notes
to the guidelines, Section 2M5.1, and therefore, I have
assessed a downward departure.
The court finds that several factors mitigate this
high offense level of 26, including the following:
Number one, the defendant's conduct occurred on only
one occasion. The export of yersinia pestis is not something
that the defendant did on a regular basis, and there's been no
proof offered to suggest it occurred on more than one occasion.
Number two, the volume of commerce involved was
minute, especially considering the plethora of yersinia pestis
available in Tanzania at any given time.
Number three, the method by which the yersinia pestis
was exported from the United States required minor skills which
do not require a great deal of education to acquire. In
addition, the yersinia pestis was packaged and arrived safely,
causing no harm to anyone along the way.
Number four, the defendant received no remuneration
for shipping the yersinia pestis to Tanzania and, according to
at least one other scientist, was providing a professional
courtesy by sending to Tanzania the confirmed samples of
yersinia pestis, where they had been originally obtained by the
defendant.
Number five, although the United States does have a
vested interest in the transportation of yersinia pestis to
foreign countries, the defendant's export was not with evil or
terroristic intent, but was done in the name of medical and
academic research and was provided to medical and academic
personnel.
Number six, as noted in testimony provided by Douglas
Brown, the senior microbiologist and deputy director of the
Chemical and Biological Controls Division, Bureau of Industry
and Security, United States Department of Commerce, the
defendant, in all likelihood, would have received permission to
export the yersinia pestis to Tanzania.
Based upon these mitigating factors, which are
present in extreme form, the court has departed downward
12 offense levels from the offense level of 26 regarding the
conviction for unauthorized export to Tanzania, making a base
offense level of 14 applicable before any enhancements are
added. Factoring in the 2-level enhancement for obstruction of
justice, I find that the adjusted offense level for the export
count is now 16. Pursuant to Sentencing Guidelines
Section 3D1.4, the court assesses one unit to the theft/
fraud-related counts, which is the offense group with the
highest offense level, that being 18, and one unit to the
export group for its offense level being within four levels of
18.
As noted in Section 3D1.4 of the guidelines, two
units result in the assessment of two additional offense levels
to the highest offense level, which, as previously noted, is
18, thereby resulting in a total offense level of 20. Based on
a total offense level of 20 and a Criminal History Category of
I, the court finds that the applicable guideline custody range
at this point would have been 33 to 41 months.
However, the court has also made a second-tier
departure on the total offense level of 20 based upon
Sentencing Guidelines Section 5K2.11 regarding lesser harms
based on the following findings:
Number one, Texas Tech University Health Sciences
Center would likely never have received any of the monies in
question had the defendant not been in their employ. The
grants and contracts have followed and have been attributed to
the defendant's research and abilities and not that of Texas
Tech University. Texas Tech University Health Science Center
has received great prestige and recognition as a result of the
defendant's medical research abilities, which substantially
outweighs any potential harm brought upon Texas Tech University
as a result of the defendant's actions in this case.
Number two, as noted in trial and sentencing
testimony, the defendant's research and discoveries have led to
the salvage of millions of lives throughout the world. There
is not a case on record that could better exemplify a great
service to society as a whole that is substantially
extraordinary and is outside of anything the United States
Sentencing Commission could have formulated in their devising
of the guidelines governing departures regarding educational
and vocational skills, as shown in Section 5H1.2 of the
guidelines; the employment record, as stated in 5H1.5; and
military, civic, charitable, or public service;
employment-related contributions; and record of prior good
works as referred to in Section 5H1.11 of the guidelines. It
should be noted that the record adequately reflects these
contributions to be exceptional in nature.
The court has therefore departed an additional three
levels from the total offense level of 20, now finding that the
total offense level is 17. With a Criminal History Category of
I, the guideline custody range now becomes 24 to 30 months, and
I have assessed a sentence of 24 months' incarceration.
Now, Dr. Butler, you have the right to appeal from
the jury verdict and the sentence that the court has just
imposed. Should you choose to appeal, you must file your
notice of appeal within ten days from today. If you file that
notice of appeal, you may also file a motion with the court
seeking permission to appeal at no cost to yourself, but rather
at the cost of the government. Should you file that motion, I
will take it under advisement and rule on it just as soon as I
can. You may stand aside.
Court will stand adjourned.
(END OF HEARING)
* * * * *
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. I
further certify that the transcript fees and format comply with
those prescribed by the Court and the Judicial Conference of
the United States.
___________________________ DATE MARCH 10, 2004
Mechelle Daniel
Official Court Reporter
