Calculated abuses (cont.)
Piling it on
Another variation of sentencing misconduct is called sentencing entrapment one of the most insidious forms of misconduct found in this investigation.
Sentencing guidelines approved by Congress in 1987 require a specific penalty for every federal crime. Judges cant consider most extenuating circumstances a provision set up so defense attorneys cant shop for lenient judges.
A persons sentence and prison time is determined by the charge brought by agents and prosecutors. They can easily manipulate those charges, especially in drug cases, where the amount of illegal substances sold is translated into the amount of prison time a convict faces.
For example, in 1992, Lorenzo Naranjo was sentenced to 10 years in prison for buying 5 kilograms of cocaine from a government informant in the San Francisco Bay area.
The informant had pressured Naranjo for months about a drug deal and was turned down. Naranjo finally agreed to buy some cocaine, but not nearly enough to suit DEA agents, who told their informant to badger Naranjo to buy more, according to an opinion rendered by the 9th U.S. Court of Appeals.
The informant finally succeeded, effectively doubling Naranjos prison sentence.
Martin Parrilla of Butte, Mont., was also a small-time dealer who agreed to sell a government informant less than $200 worth of cocaine in 1996.
Agents for the U.S. Bureau of Alcohol, Tobacco and Firearms told the informant to set up another deal and offer Parrilla a handgun in exchange for cocaine. That would also hook him on a federal firearms charge. Parrilla agreed to the deal, and was arrested on both federal drug and firearms charges.
He agreed to plead guilty after federal agents dropped the firearms charge. But his pre-sentence report showed a gun was involved in the deal, even though Parrilla argued it was the result of entrapment. A judge said his hands were tied and doubled Parrillas sentence, as required by federal guidelines.
Both Naranjo and Parrilla were lucky. Appeals courts agreed theyd been entrapped, and cut their sentences. That doesnt always happen.
In 1992, John Behler, a 49-year-old Vietnam veteran who lived in Dunbar, Neb., was sentenced to 19 years in federal prison for supervising a drug conspiracy in which he was the only person to go to prison.
Hed never been charged with a crime before.
According to the government, for three years Behler had traveled to Colorado, where he bought methamphetamine, which he then brought back to Nebraska and sold.
Behler admitted frequently buying the drug in Colorado. But he said he used it himself. And 400 taped conversations made by federal agents on Behlers phone disclosed only one instance where he sold the drug, providing a small amount to a friend of his wife.
When Behler was arrested, he was carrying less than one-half of a gram of methamphetamine. Based on that amount alone, Behler would have faced only minor drug charges.
But federal prosecutors found two former girlfriends to testify against him. One had been arrested on drug charges herself, and received leniency for testifying against Behler, though she denied any such deal in court. Prosecutors are supposed to correct such lies, but did not in this case. The other girlfriend said she testified because he repeatedly threatened her. Both said hed sold the drugs hed bought in Colorado.
Agents found no drugs in his house when he was arrested, only $200 in cash, and no other assets to suggest he was a drug kingpin. Yet the testimony of his two former girlfriends prevailed.
But prosecutors had only gotten started.
The government arbitrarily decided Behler had transported one ounce of methamphetamine on every trip he made to Colorado 14 ounces total. Under the sentencing enhancement provisions of mandatory federal sentencing guidelines, that ensured Behler a sentence of at least 10 years. Prosecutors then used the wrong guidelines to add four more years based on the drugs purity a mistake the judge in the case failed to catch.
Behler didnt have a gun when he was arrested, but his former girlfriends testified that he used to carry one. So prosecutors added a weapons possession charge, which added another five years to his sentence.
Then they added more time for intimidating a witness, even though the testimony of the witness who claimed intimidation had been impeached in court.
Had Behler faced state charges, he might have gotten probation.
Had he been sentenced for bringing in 14 ounces of methamphetamine, he would have gotten five years in prison.
But because of the manipulation of mandatory sentencing guidelines by prosecutors, he ended up being sentenced to 19 years as a drug supervisor.
An appeal he filed in prison had some success a judge agreed to cut 71/2 years from his sentence based on the governments arbitrary determination of the purity of the drugs hed purchased. He has filed other appeals on what he considers other sentencing guideline errors, as well as discovery violations and perjury.
Behler worked as a welder and a bouncer before he was arrested. He admitted he used lots of drugs.
But by no stretch of the imagination could he have been considered the kingpin of a drug conspiracy.
If there were a drug conspiracy, he said, "wouldnt it look good if you had two people in jail, instead of one guy getting 19 years?"