Some caught in conspiracy talk to avoid long sentences

2003-02-18T23:00:00Z Some caught in conspiracy talk to avoid long sentencesLORNA THACKERAY Of The Gazette Staff The Billings Gazette
February 18, 2003 11:00 pm  • 

His voice quavering, notorious Billings drug enforcer Wayne Wells gave the government what it needed during the 1995 trial of his best friend and partner in crime.

Wells, a 6-foot-4-inch, 220-pound tough guy with a major drug habit and a fearsome reputation as a debt collector, was facing 30 years in a federal pen.

He was already 37 years old when the government offered him a deal — tell investigators everything he knew about drug trafficking, and other crimes and prosecutors would recommend a reduced sentence. He would also be required to testify against his friend, Dean Thomas LaFromboise.

So Wells reluctantly took the witness stand in April 1995, and testified that LaFromboise had told him about a half pound of methamphetamine that he had taken from Billings to Great Falls to sell. He also testified that LaFromboise carried guns.

That's the way it is supposed to work. Drug dealers providing information to get other thugs off the street. But even for the worst of them, giving up others can be a wrenching decision.

When LaFromboise's attorney asked Wells why he decided to take the stand, Wells hung his head.

" 'Cause there was no way of beating it, and I didn't want to die in prison, which I probably might anyway,' " he replied.

Asked if he was afraid of what might happen in prison, Wells responded bitterly.

"A snitch is a snitch; a rat is a rat, and I'm a rat."

He wasn't the only one in that vast meth conspiracy investigation who decided to trade testimony for sentence reductions. Twelve people were named in the indictment. LaFromboise and another defendant were the only ones who refused a deal and went to trial. LaFromboise was initially sentenced to 60 years in prison, though appeals have pared it down to 30.

Wells got 30 years too. But under a provision called Rule 35, his sentence was reduced to 13 years. Conspiracy ringleader Doug Ehrlich also got a sentence reduction for his testimony.

Rule 35 motions, which have to be brought by the government within a year of conviction, are among the few ways around a mandatory minimum sentence. If a criminal has provided "substantial assistance" to the government, the prosecutor requests the sentence reduction. The judge decides whether to grant it and how much of a reduction is appropriate.

A few first-time offenders qualify for a "safety valve" that allows the judge to disregard mandatory minimums. To meet safety valve requirements, a defendant must have virtually no criminal history. Guns, violence or threats of violence must play no part in the offense, and the defendant cannot have been a leader, organizer or supervisor.

Most importantly, a defendant seeking safety-valve consideration must tell the government everything he can about the crime he's charged with and any others he may know about.

The problem with the safety valve option is that most people can't qualify because their records have to be almost squeaky clean, according to Yellowstone County Chief Public Defender Penny Strong.

"About one misdemeanor does it," she said. Strong said she is working with a client who can't take advantage of the safety valve because he has two DUIs on his record.

Talking to the government is the only way out for people sentenced under minimum mandatory sentencing laws. In Fiscal 2001, 70 Montanans convicted of federal felonies, including drug and gun violations, received sentence reductions for providing "substantial assistance" to the government. That's about 23 percent of the total.

It's an agonizing choice, defense attorneys say. But for many the staggering penalties are the deciding factor.

"I don't push it," said Mark Werner, assistant federal defender for the Billings office. "Besides being a legal choice, it's a moral choice. I've heard good arguments on both sides."

But those who don't take the deal pay a heavy price, he said.

"It could mean they do 15 years instead of seven," Werner said.

Justin Dean Schwartz, 29, refused to talk and paid for it Sept. 12 when he was sentenced to 10-years on drug and gun charges. Two co-defendants in the case, agreed to provide "substantial assistance" and got much lower sentences.

"I've got to live with myself the rest of my life," Schwartz explained in a post-sentencing interview.

Most who agree to cooperate never end up on the witness stand. In Montana during Fiscal 2001, only 4.5 percent of felony drug defendants went to trial. The rest accepted plea agreements.

When these witnesses do take the stand, one of the first lines of defense is their reliability. Providing "substantial assistance" to the government is a tricky business, veteran Billings defense attorney Jay Lansing said.

"Does it mean telling the truth, or does it mean getting someone convicted?" Lansing asked. "You have to have something to offer."

"The system gets turned on it's head," he continued. "The more that you know, the more involvement you have, the more people you can tell the government about, the bigger sentence reduction they can expect. The less you know, the less chance of a reduction."

Montana's chief federal defender, Tony Gallagher of Great Falls, agrees. Steep mandatory drug sentences turn people into snitches, he said, and not always into truthful ones.

"If they don't have someone big to give up, then they just start naming names," Gallagher said. "A lot of snitches will say anything to avoid those minimum mandatories."

Prosecutors see it differently. Mandatory minimums are a powerful incentive to cooperate with the government and a formidable investigative tool, Montana U.S. Attorney Bill Mercer said.

"It would be difficult for agents to crack these state and federal conspiracies without it," he said.

Prosecutors use the minimum-mandatory leverage to work their way up the drug ladder and to learn about other crimes of which law enforcement may be unaware, according to Mercer, and that's just what Congress intended.

"Without a mechanism for law enforcement to acquire this kind of information from defendants, we would be hamstrung in our attempts to eradicate the criminal behavior known to the defendants, but otherwise beyond our own knowledge," Mercer said.

Mercer said it is "somewhat unusual" to find a defendant who doesn't have anything relevant to offer.

When Assistant U.S. Attorney Jim Seykora responds to defense attacks on the reliability of these witnesses, he often tells juries "There are no swans in a cesspool."

People who cooperate get sentencing breaks, he said. Those who promote themselves as standup guys and refuse to talk about their crimes aren't acting out of noble impulses, he said.

"Maybe they're just not taking responsibility for what they've done," Seykora said.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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