Trial tactic decried

The Baltimore Sun

A federal jury decided last year that Gary "Fat Boy" Williams Jr. was a drug dealer. But when his sentencing hearing resumes today in a Baltimore courtroom, he will face accusations that he was involved in the shooting death of an informant though he has never been charged with murder.

Federal prosecutors are mounting what is essentially a trial within a trial in hopes of winning a stiffer sentence. Federal sentencing law allows a judge to consider alleged crimes that have been refuted at trial or which a defendant has never been charged with, a provision that critics say flouts the constitutional protections of the trial-by-jury system.

"It's a practice that is obviously ripe for abuse," said Jonathan Turley, a law professor at George Washington University. "The prosecutors can use this technique to punish someone for a murder that they're not willing to formally charge and prosecute, and the result is that the defendant receives the penalty but none of the due process protections."

Williams' lawyer, Christine Needleman, said, "It's supposed to be a sentencing for my client's first [federal] drug conviction. ... Instead, they're trying to tack on a murder that can't be proven to send him to prison for life without parole, without any of the procedures."

Rod J. Rosenstein, the U.S. attorney for Maryland, said Williams is accused of ordering the killing of a 35-year-old Harford County woman in February 2006 to obstruct the drug investigation, making it "relevant conduct" to the drug dealing. Prosecutors must prove his involvement by only a "preponderance of evidence."

In a criminal trial, a defendant must be proven guilty "beyond a reasonable doubt," a higher threshold.

Sentencing guidelines call for Williams, 28, of Abingdon, to receive 14 to 17 years on the drug charges, but the murder accusations could stretch it to life.

"The issue today is that he has been convicted, and we have an obligation to bring to the judge's attention all the relevant conduct," Rosenstein said. "You don't want a judge to flip a coin. You want a defendant who murdered a witness getting a sentence in the high end."

In 2005, an Arkansas man charged with killing a 13-year-old boy, his mother and the mother's boyfriend in a six-hour rampage pleaded guilty to two lesser counts of drug-related charges, and the murder charges were dismissed. But during sentencing, they were brought forward as relevant conduct, and he received life in prison.

An Ohio man found guilty of mail fraud and forgery was linked at sentencing to a killing in 2001. Facing 15 to 21 months on the original charges, his sentence was increased to 30 years.

In a case strikingly similar to Williams', a 35-year-old West Virginia man convicted last year of several drug and money-laundering counts received a 240-year sentence after the judge found by a preponderance of the evidence that he also ordered the killing of an informant working with the Drug Enforcement Administration.

U.S. District Judge David A. Faber acknowledged that the evidence linking Maurice Taft "Mo" Gibson to the murder probably wouldn't have held up in a criminal trial.

"Gibson had motives for ordering the murder. ... Further, it is clear that [the two men accused of carrying out the killing] are hiding something," Faber wrote in an opinion. "While the evidence falls short of meeting the proof beyond a reasonable doubt standard that would apply in a murder trial, the court is persuaded that it meets the preponderance of the evidence test that applies to sentencing issues."

Charles Miller, the U.S. attorney for West Virginia's Southern District, said the provision is useful for holding defendants accountable for all of their actions related to a crime. He noted that if formally charged with murder, a defendant would face the death penalty, something that is not on the table with sentencing enhancements.

"The intent of the federal sentencing guidelines is to punish a defendant not so much for what they're convicted of, but what they did, if that makes sense," Miller said. "If you kill somebody in connection with drug dealing, you ought to be sentenced for murder. Sometimes the evidence is not as strong as you would like, but the standard is lower at sentencing."

Armed with more evidence in a separate case, Miller's office successfully won murder convictions against a man and a woman accused of killing an informant.

Andrew C. White, a Baltimore defense attorney and former federal prosecutor, said defendants have ample opportunity to counter accusations brought forward in sentencing.

"It's extremely frustrating as a defense lawyer to have the government bring up inflammatory facts not proved beyond a reasonable doubt," he said, "but from the other perspective, it certainly can't be said that it's not fair or relevant that a judge should consider such information in determining what sentence to give."

Douglas J. Berman, a law professor at Ohio State University, said that at the least, judges should be convinced beyond a reasonable doubt when considering "big-ticket" accusations. The federal public defender's office has called for the use at sentencing of acquitted and uncharged conduct to be abolished or strictly reined in.

The key witness in the drug case against Williams was to be Robin Welshons, who was facing drug charges.

She agreed to cooperate with a federal Drug Enforcement Administration agent by making recorded telephone calls and buying drugs from Williams in 2005, according to court documents. The night before her Feb. 8, 2006, death, she called a federal agent to express concern for her safety, prosecutors said.

Hours later - two days from beginning an 18-month prison sentence - Welshons was fatally shot at Ken's Motel on U.S. 40 in Aberdeen. Detective Donald Licato of the Aberdeen police testified last week that the defendant's family members told him about their suspicions that Williams was involved in Welshons' death.

His father said Williams came to his house the night before her death to pick up a .357 revolver and vowed to "take care of Robin Welshons," and his sister told police that she overheard him say that he had "to do something about Robin Welshons."

Needleman said the testimony was a "pile of words without a physical scrap of evidence."

justin.fenton@baltsun.com

madison.park@baltsun.com

Welshons timeline

2005

*Oct. 13: Robin Welshons buys 14 grams of cocaine from Gary "Fat Boy" Williams Jr.

*Nov. 1: Welshons buys 28 grams of cocaine from Williams.

*Nov. 17: Welshons buys 53.8 grams of crack cocaine from Williams. In a recorded telephone call, Williams questions Welshons about being an informant.

*Dec. 1: Search warrant is executed at Williams' home, where he tells officer he knew who had "informed" on him.

STYLE: INFOBOX

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2006

*Feb. 7: Welshons calls a Drug Enforcement Administration task force officer expressing concern for her safety.

*Feb. 8: Welshons is shot dead at an Aberdeen motel. Her family and friends say her death is connected to undercover work as an informant, but police refuse to confirm.

*Feb 9: Charges against Williams are filed for the Nov. 1 sale of cocaine in Harford County. Statement of charges refers to a confidential informant.

STYLE: INFOBOX

-?

2007

*Sept. 4: Williams is indicted by a federal grand jury on two counts of selling cocaine and one count of selling crack cocaine.

*Dec. 20: Federal jury convicts Williams on the drug charges.

STYLE: INFOBOX

-?

2008

May 9: Prosecutors connect Williams to Welshons' death during his sentencing hearing.

[Court documents]

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