Upton pleads guilty to felony

MOBILE – The trial of Evergreen radio personality Luther Upton ended abruptly Wednesday morning when Upton entered a guilty plea before the start of the second day of testimony in U.S. District Court.

Upton was charged with threatening to injure an Evergreen Policeman Dexter Rudolph.

Upton's sentencing is set for May 27 at 9 a.m. in Mobile at the federal courthouse.

According to Upton's attorney, Arthur Madden, there is no written agreement on the sentencing but they are hopeful that it will be probation and a possible fine.

U.S. District Judge Kristi DuBose explained to Upton that he was pleading guilty to a felony and that he could no longer vote, hold public office or possess firearms.

The 75-year-old Upton was charged with "knowingly and willfully transmitting in interstate and foreign commerce a communication containing a threat to injure the person." during his morning radio show and over the internet.

Upton was facing up to five years in prison and fines up to $250,000.

In their opening statements federal prosecutors said "the case was about a threat to kill a police officer by Upton" on May 18, 2021 on the WPPG Power Pig radio station.

The police officer did his job and he was threatened, prosecutors said.

"The evidence will show with Upton's power on the radio and as an Evergreen city councilman that he played by different rules," prosecutors said.

Prosecutors said Rudolph's first encounter with Upton, who was arrested for DUI, was when Upton was drunk and behind the wheel of a car involved in an accident.

Upton tried to bully the police officer because of his position, prosecutors said.

"Our First Amendment protects free speech, but it doesn't allow for someone to go on the radio and threaten to kill a cop," the prosecutor said.

Madden said Upton was being prosecuting for a three-minute rant on the radio.

"His comments on the radio may have been vulgar and incorrect," Madden said. "But you are holding him up as a drunk. Each morning he is on the Power Pig. He's an entertainer. He was elected to the city council. He never threatened to kill a cop. Luther shoots his mouth off and he tried to apologize for his remarks. His cruel, offensive speech is protected."

The prosecution's first witness Michael Lambert, a paramedic and the owner of Conecuh County EMS, testified that he is a regular listener of Upton's morning show and recorded the three-minute segment on his cell phone.

Upton caught Lambert's attention when Upton said it was something that he wanted to get off of his chest on the May 18 morning show regarding his accident and an Evergreen police officer.

"I wanted to hear it so I recorded it and went to take my shower," Lambert said.

Lambert said after getting out of the shower he listened to the recording and it was a "wow" moment.

In Lambert's recording Upton's said, one turd ruins the whole party. Pete Wolff, (the former mayor of Evergreen), got rid of one turd in the police department. The Evergreen Police Department is a good department, but they have another turd in the punch bowl. The mayor and police chief need to get rid of Rudolph. If you don't get rid of him I will. My car has been towed three times due to him and he needs to stop it.

"I dare him (Rudolph) to stop me again, cuz when he pulls me over. I'm going to put him down. I'm just telling ya now, I'm tired of it. I'm urging Simp (police chief) and Mayor Stallworth to do whatever you've got to do to get rid of the son of a b****, OK? Because if you don't, I am. And Simp, if you and Stanley, don't take care of that problem, I'm going to take care of it," Upton said.

Upton used several other cuss words in describing Rudolph in the rant.

Lambert said he went to breakfast and the guys in the restaurant were talking about it and he told them he had the recording.

Lambert said the Alabama State Bureau of Investigation (SBI) learned of the recording and came to see him about it as did the FBI.

"I am a friend of Luther's, but I think he crossed the line," Lambert said.

On cross examination Lambert said Luther is "out spoken and out landish."

"He's an entertainer on the radio," Lambert said. "Love him or hate him I listen to what he has to say."

Rudolph, who was the next witness for the prosecution, said he was a five and one-half year veteran of the police department.

He said he met Upton a couple of times, but didn't listen to his radio show.

He said he had several encounters with Upton while on duty as a city policeman.

On Nov. 16, 2020 he encountered Upton while working a wreck at the intersection of U.S. Highway 84 and State Highway 31.

Upton's vehicle rear-ended a car stopped in front of him at the stop sign.

According to the body camera footage presented in court, Upton said, "She stopped and I bumped her."

Rudolph said he asked for Upton's driver's license and insurance.

Rudolph said he saw a firearm in Upton's vehicle which was removed for safety reasons and when checked by another police officer it was loaded.

The firearm was then unloaded, Rudolph said.

"Then I took out a bottle of Jim Beam whiskey," Rudolph said. "I could smell alcohol and asked him if he had anything to drink."

"I had something to drink," Upton said. "I drink everyday."

Rudolph said he asked Upton to come over and talk with him about hitting the rear of the car.

"I explained to him that the person had to stop at the stop sign," Rudolph said. "And it's your job not to hit her. He said xagain I was harassing him. I saw two bottles of whiskey, one completely empty and the other looked like a swallow had been taken from it."

Upton said there was no damage to her car and that she stopped in front of him.

"Mr. Upton was very rude to me and it happens when people are under the influence," Rudolph said. "I asked how much he had to drink?"

"I just left the casino and I have had two drinks," Upton said.

Rudolph said he gave Upton the field sobriety test, which he failed, and told Upton to turn around so he could handcuff his hands behind his back.

"You are harassing me," Upton said. "Take me to jail you are not going to handcuff me. It's racist. I'm white and you and the other two officers are black."

Rudolph told Upton that he was taking him to jail for driving under the influence.

"Upton told me to take him home," Rudolph said. "That's always happened in the past. I've seen officers take Upton while he was under the influence."

Upton told me that I "must be getting my nuts off on this," Rudolph said.

Upton said he was a 100 percent disabled veteran and "if you put handcuffs on me you will have to kill me."

Rudolph said that he did not want the problem to escalate and he just wanted to put Upton in the police car.

"I put Upton in the backseat without the handcuffs on," Rudolph said. "I have had about 20 other DUI arrests and put handcuffs on all of them."

Rudolph took Upton to the police station and tested him on the breath analyzer and he tested 0.11 which is 3 points over the legal limit of alcohol consumption.

"I charged him with DUI," Rudolph said. "I put him in the Conecuh County jail and his car was towed which is consistent with Alabama state law."

Rudolph's second incident with Upton happened about five months later on April 28, 2021 when he and another officer responded to shots fired at his Evergreen residence following a call from a neighbor.

Rudolph said Upton was shooting a .22 rifle from his back porch with two of his friends.

Rudolph said he asked Upton if there was a shooting ordinance prohibiting discharging weapons in the city limits?

Upton said according to a 1980 ordinance the mayor is the only person who can punish persons inside the city limits.

"Nothing was done," Rudolph said.

The third incident happened two weeks later at the Depot on Front Street when Upton backed his vehicle into the path of another car.

Upton's license had been suspended because of his DUI several months earlier, Rudolph said.

"It's an automatic tow according to state law," Rudolph said.

The final incident occurred with Upton's son, Bush, on May 17, 2021.

"Earlier that morning Bush was at the Love's gas station," Rudolph said. "The manager of Love's did not want Bush on the premises. We were notified and Bush had outstanding warrants on him. I turned my lights on him as he was headed west on Highway 84. He was driving the same vehicle that was involved in the accident on East Front Street.

"Asked Bush for his driver's license and insurance card. His driver's license was revoked. The car was towed. I was not targeting Bush."

Rudolph said after hearing of Upton's threat he feared for his life.

"I was suppose to go to my daughter's softball game that day, but I didn't go because I was scared, he said. "Every time I had an encounter with him he had a gun."

Rudolph said he contacted the ABI and FBI about Upton's threats on the radio.

Rudolph said at a Veteran's Day ceremony in November of last year, Upton approached him and said he apologized to me on the radio and stuck his hand out to shake hands.

"I did not shake his hand," Rudolph said.

Following the testimony of Lambert and Rudolph the trial was to resume Wednesday morning.