State attorney’s office intervenes in felony case against former BISD electrician

Calvin Walker (right) and his trial attorney in the federal case, Dick DeGuerin

Former Beaumont Independent School District contract electrician Calvin Walker, under state indictment for allegedly defrauding and illegally collecting millions of dollars from BISD and the city of Port Arthur, has challenged the constitutionality of the pending state criminal prosecution to the United States Supreme Court (SCOTUS). Specifically, Walker and counsel are claiming violation of constitutional protection against double jeopardy that bars multiple prosecutions for the same crime since he was already tried in federal court on similar charges.

Since Walker first appealed before SCOTUS in November 2016, not only has he petitioned the court to be heard, but so have various “friends of the court” interceding on Walker’s behalf. Until now, the state has been silent in its protest to Walker’s search for an outright dismissal prior to trial. March 17, however, the chief appellate lawyer for the State of Texas filed Jefferson County’s answer to Walker’s assertions.

According to filings made on Walker’s behalf, he and counsel are claiming that the pending state prosecution is tantamount to “a sham and a cover” for multiple attempts by the conspicuously connected state and federal prosecution teams to convict him on the same crime – a crime that Walker entered into a plea deal with the federal government to atone for. Walker is also claiming that the trial court made a reversible mistake in not allowing for a hearing to argue that claim prior to SCOTUS intervention.

However, the crimes being adjudicated are not the same, according to the indictments handed up in each court and the disposition of the only claims Walker has answered to date. The U.S. Attorney’s Office for the Eastern District of Texas, the federal prosecuting department for Southeast Texas, secured a 37-count indictment against Walker in 2011 for aiding and abetting mail fraud, aiding and abetting wire fraud, transferring fraudulently obtained funds in interstate commerce, committing fraud upon programs receiving federal funding, and money laundering. After a trial, a deadlocked jury returned with no verdict. Rather than try the case again, the federal government entered into a plea deal with Walker, giving concessions in exchange for a guilty plea on an unindicted misdemeanor, while also demanding forfeiture of more than $3 million.

Texas Solicitor General Scott Keller asserted to SCOTUS that the fact that the federal indictments were never fully litigated should reasonably alert an astute attorney that Walker therefore cannot be prosecuted “a second time” for a crime he was never prosecuted for the first time.

“That dismissal was a concession in a plea bargain – not a resolution in the petitioner’s favor of the merits of ‘some or all of the factual elements of the offense charged,’” Keller summed up, citing United States v Martin Linen Supply Company precedent. “A dismissal like this one, not turning on factual guilt or innocence of the dismissed offense, is not equivalent to a jeopardy-ending acquittal.”

According to the Texas solicitor general, as such, any review of the double jeopardy claim is completely moot.

Should the court choose to delve into the double jeopardy claim anyway, Keller challenges the ability to invoke the double jeopardy statute based on the merits of Walker’s own submission.

“Any ‘sham and cover’ exception would not apply here,” Keller stated, and referenced lower court decisions including the Jefferson County Criminal District Court trial court and the Court of Appeals. “The court found that the state was not manipulated by the federal government into obtaining the state indictments, that the state and federal prosecutor were not the same person, and that the initial federal prosecution was not a cover for the state prosecution.”

“Tellingly,” Keller underscores, “(Walker) does not point to a single instance in which a court of appeals granted relief under a (‘sham and cover’) exception, much less one on facts similar to his allegations here. That is not a coincidence.”

Not that the court need address the “sham and cover argument” anyway, Keller explained, since the only issue preserved for appeal at SCOTUS was whether the trial court erred by failing to hold an evidentiary hearing on the double jeopardy claims.

And should SCOTUS elect to examine, element by element the tenants of double jeopardy, Keller is still certain that jeopardy is not attached.

Keller points to Jefferson County’s indictments, handed up in July 2014, alleging securing execution of a document by deception and money laundering not addressed in Walker’s plea deal.

“The state fraud and laundering crimes charged here are not remotely similar” to the federal crimes pleaded to, Keller asserted. “(Walker) was charged in state court with fraud and money laundering – offenses far afield, and more serious in the eyes of the state, than the one misdemeanor count of failure to report income on his federal tax returns to which (he) pleaded guilty to in federal court.”