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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION * UNITED STATES OF AMERICA * v. * GARY WILLIAMS * * * * * * * * * * * * * * CRIMINAL NO.: WDQ-07-0402

MEMORANDUM OPINION Because of the potential for innocent misunderstanding--or intentional mischaracterization--of the sentence imposed in this case, the Court has taken the unusual step of filing a sentencing memorandum to explain the rationale for that sentence. First, it

must be emphasized that this sentencing determination was not the trial of a presumptively innocent person to determine whether there was evidence beyond a reasonable doubt that he killed someone. Rather, it was the process of determining the

appropriate sentence for someone who has been found guilty of narcotics trafficking and an effort to determine the extent of the criminal conduct for which he should be punished. In this

case that determination involved the answer to two questions: (1) Is it more likely than not that he caused the murder of the cooperating witness?, and (2) If so, to what extent should this affect his sentence?

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I.

Background In October and November 2005, Robin Welshons bought cocaine

and cocaine base from Gary Williams.

Gov't Sentencing Ex. 4.

Welshons was a cooperating witness for the Government in its investigation of Williams and narcotics trafficking in Harford County, Maryland. Sentencing Tr. at 4, May 9, 2008. Welshons's

communications with Williams were recorded and monitored by the Government. Id. at 33-41.

On November 17, 2005, Welshons and Williams had a series of telephone conversations to arrange the sale of crack cocaine. Gov't Sentencing Ex. 4. During one of those conversations,

Williams, who knew that she had cooperated with the police in the past and was concerned that she would do so again, questioned her about cooperating: WILLIAMS: I'm just making sure everything is everything because if, I don't play them (inaudible) games you know. [WELSHONS]: What do you mean? WILLIAMS: You know, when, when you cross over to the other side again. Id. at 18. During the purchase of the crack at Williams's

residence at 1309 Gold Medal Way, an apartment complex in Edgewood, Maryland, Williams asked Welshons directly: "You ain't working with no feds, are you girl?" Id. at 22. He also warned

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her that if she was, he would "kick the shit out of [her]."

Id.

On December 1, 2005, Task Force Officer Christopher Deveau executed a search warrant at 1309 Gold Medal Way, and Williams was arrested and charged in Harford County. Later, TFO Deveau

interviewed Williams, who told him that he knew the woman who had informed on him. Sentencing Tr. at 5. Id. Williams did not name the

informant at that time.

TFO Deveau told Williams that if

anything happened to this individual, the Government would come back and look at him. Id.

By February 7, 2006, Williams had posted bond and was released pending his trial. Id. at 5-6. Early in the evening on

February 7, TFO Deveau received a concerned phone call from Welshons. Id. at 6. Welshons explained that Williams had slowly

driven by her work at the Waffle House, given her "dirty looks," and driven off. Id. at 6-7. She also told TFO Deveau that Id. Welshons asked TFO

Williams had called her cell phone.

Deveau whether Williams knew she was cooperating with the Government, as she was concerned that Williams might have access to Government paperwork with her name on it. Id.

Later that evening, Williams visited his father, Gary Williams, Sr. ("Senior"), at his home at around 11:30 p.m. and asked for his .357 revolver. Id. at 25. Williams told Senior Id. Senior tried

that he was going to "take care of" Welshons.

to talk Williams out of taking any action, but Williams took the 3

gun anyway.

Id.

On the morning of February 8, 2006, Welshons and a companion were at Ken's Motel in Aberdeen, Maryland. Id. at 18. The

companion heard a knock at the door, and Welshons got up to open it. Id. Upon opening the door, Welshons exclaimed "Oh no!" Id. Bullet fragments Id.

The companion heard multiple gunshots.

recovered from Welshons's body were consistent with those from a .357 revolver. the crime scene. Id. at 27. Id. No shell casings were recovered from

At around 9 a.m. on February 8, Williams arrived at Senior's workplace and directed Senior to retrieve the remaining .357 cartridges and holster from Senior's home, and get rid of them. Id. at 25-26. Senior went home, got the bullets and holster, and Id. at 26. He tossed the cartridges into a

returned to work.

wooded area behind his workplace, and threw the holster into a trash can. Id. Id. at 20.

On February 10, 2006, Williams was arrested.

When Aberdeen Homicide Detective Donald Licato told Williams about Welshons's murder, Williams laughed. II. Analysis Id.

A. Permissible Scope of Judicial Factfinding at Sentencing The Sixth Amendment permits a sentencing judge to consider facts not found by a jury, and that judge may rely on those facts to increase a convicted defendant's sentence. 4 Rita v. United

States, 127 S. Ct. 2456, 2465-66 (2007).

Sentencing judges may

find facts by a preponderance of the evidence so long as the fact-finding does not result in a sentence beyond the maximum term of imprisonment specified in the relevant statute. States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). United

Post-Booker,

the Fourth Circuit has approved the preponderance standard at sentencing. See, e.g., United States v. Randolph, No. 06-4922,

2008 WL 154460, at *7 (4th Cir. Jan. 17, 2008) (permitting increased sentence based upon conduct on which defendant was acquitted); United States v. Abdullah, No. 06-4970, 2007 WL 2046801, at *4 (4th Cir. July 13, 2007) (approving preponderance standard for application of the murder cross reference in the sentencing guidelines). B. Evidence Tying Williams to the Murder of Robin Welshons At the sentencing hearing, the Court heard the testimony of TFO Deveau and Detective Licato. Although not all their

testimony would have been admissible at a jury trial, the Federal Rules of Evidence do not apply at sentencing. 1101(d)(3). Even if the rules of evidence had applied, the testimony about Robin Welshons's phone call to TFO Deveau would have been admissible. When a defendant's misconduct causes a witness to be Fed. R. Evid.

unavailable at trial, he forfeits the right to object to that witness's out-of-court statements. See United States v. Gray,

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405 F.3d 227, 240 (4th Cir. 2005).

Rule 804(b)(6), titled

"forfeiture by wrongdoing," is a hearsay exception that permits into evidence "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." Fed. R. Evid. 804(b)(6).1 Proof of the defendant's misconduct United

may be established by a preponderance of the evidence. States v. Rivera, 412 F.3d 562, 566-67 (4th Cir. 2005).

Welshons's February 7, 2006 phone conversation with TFO Deveau is admissible because Williams caused her to be unavailable as a witness at his trial. Welshons's phone call to

TFO Deveau link Williams's recorded threats and Welshons's death. Welshons said that Williams had previously called her cell phone, and she had not answered his calls initially because she was concerned that he had seen paperwork tying her to his arrest. Sentencing Tr. at 6-7. She also explained that earlier in the Id.

day, Williams had driven by her workplace and glared at her. at 7. dead. Less than 24 hours after Welshons's phone call, she was

These incidents, taken together, establish that it is more

likely than not that Williams caused Welshons's death and

For a thorough treatment of the forfeiture by wrongdoing doctrine as a safeguard against witness intimidation, see generally Paul W. Grimm & Jerome E. Deise, Jr., Hearsay, Confrontation, and Forfeiture by Wrongdoing: Crawford v. Washington, A Reassessment of the Confrontation Clause, 35 U. Balt. L.F. 5 (2004). 6

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unavailability as a witness at his trial and sentencing.

The

Confrontation Clause does not protect Williams from this hearsay exception. As Welshons's unavailability for cross-examination

was procured by Williams, the consideration of her statements to TFO Deveau does not offend the Sixth Amendment. Washington, 541 U.S. 36, 62 (2004). The consideration of Detective Licato's testimony about Senior's out-of-court statements is somewhat more problematic. Senior told Detective Licato about Williams's visit to his home at around 11:30 p.m. on February 7, 2006, to obtain a .357 revolver "to take care of" Welshons. Sentencing Tr. at 25. See Crawford v.

Senior also told Licato about Williams's appearance at Senior's workplace the next morning at 9 a.m.--shortly after Welshons was murdered--to direct Senior to dispose of the remaining .357 cartridges and a holster at Senior's home. Id. at 25-26. Senior

told Licato he retrieved the bullets and holster from his home, and returned to his workplace. Id. at 26. He threw the holster

into a trash can and tossed the bullets into a grassy, wooded area behind his workplace. Id. Detective Licato testified that

Senior showed him the location where he had thrown the cartridges. Id. Two have been recovered.

Admissible hearsay usually requires an exception to the hearsay rule. Fed. R. Evid. 805. Had there been a trial for

Welshons's murder, Licato's testimony about Williams's statements

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to Senior would have been double hearsay.

But reliable hearsay

testimony may properly be considered by sentencing judges, see United States v. Terry, 916 F.2d 157, 160-61 (4th Cir. 1990), and the Court finds Detective Licato's testimony reliable. Senior's statement that he provided his son with a .357 revolver is corroborated by the Medical Examiner's conclusion about the probable caliber of the murder weapon and the absence of shell casings at the murder scene. In summary, Williams's recorded threats to Welshons, his boast that he knew the female who had informed on him, his visit to Welshons's workplace and "dirty looks" at her, his father's provision of a .357 revolver to him, the bullet fragments recovered from Welshons's body, the lack of shell casings at the scene (indicative of a revolver rather than a semiautomatic pistol), Williams's direction to his father to dispose only of the .357 cartridges and a revolver holster (although Senior had retained another gun for Williams), and Williams's laughter when informed of Welshons's murder--all convince the Court that it is more likely than not that Williams committed, aided, abetted, counseled, commanded, induced, procured, and willfully caused Welshons's murder. C. The Appropriate Sentence The Government requested a sentence of life imprisonment for Gary Williams and argued that there are three ways in which the

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Court may impose the requested sentence.

First, because the jury

convicted Williams of Count Three (distribution of cocaine base) and found that 50 grams or more of cocaine base was involved, 21 U.S.C.

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