DEFENDANT.	  	)	MARCH 10, 2004


LUBBOCK, TEXAS 79401; (806) 744-7667.  

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 		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 
		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 
		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 
		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 
		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 
		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 
		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 
		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.  

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	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