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United States v. Walker

United States District Court, S.D. West Virginia, Charleston Division

June 26, 2017





         The court must decide whether, under Rule 11 of the Federal Rules of Criminal Procedure, to accept or reject the plea agreement between the defendant, Mr. Charles York Walker, and the government. While Rule 11 gives defendants and prosecutors the ability to enter into plea agreements, it also obligates judges to accept or reject those agreements.[1] Rule 11 is silent on what the court should or may consider in its decision.

         It is the court's function to prevent the transfer of criminal adjudications from the public arena to the prosecutor's office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system. The community of the Southern District of West Virginia must not be systemically excluded from its proper place in this participatory democracy, especially with regard to the heroin and opioid crisis. Because I FIND that the plea agreement proffered in this case is not in the public interest, I REJECT it.


         a. Factual Background

         On September 13, 2016, the grand jury in the Southern District of West Virginia returned an indictment against the defendant in case number 2:16-cr-174-1.[2] The indictment charged the defendant with three counts of distributing a quantity of heroin in violation of 21 U.S.C. § 841(a)(1); two counts of distributing a quantity of fentanyl in violation of 21 U.S.C. § 841(a)(1); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).[3] The charged conduct occurred between April 14, 2016, and July 14, 2016.[4]

         The defendant and the government later entered into a plea agreement. The defendant agreed to plead guilty to a separate, single-count information, and the government agreed to move this court to dismiss the grand jury indictment.[5] On January 23, 2017, the single-count information was filed against the defendant in case number 2:17-cr-10. The information charged Mr. Walker with a single count of possession with intent to distribute a quantity of heroin on July 14, 2016, in violation of 21 U.S.C. § 841(a)(1).[6] On January 26, 2017, the defendant pled guilty to that information.[7] Although I accepted the defendant's guilty plea, I deferred acceptance of the parties' plea agreement until I reviewed the presentence investigation report.[8]I have done so.

         During the presentence investigation, a number of troubling facts regarding Mr. Walker's criminal history and the criminal conduct at issue emerged. First, Mr. Walker is intimately familiar with the criminal justice system. At age thirteen, Mr. Walker broke into an apartment and stole jewelry, a radio, and a Nintendo gaming set. Although he was charged with aggravated burglary and theft, Mr. Walker was ultimately convicted of burglary and sentenced to twelve months probation. From ages fourteen to seventeen, Mr. Walker was convicted of six more theft-related crimes. As an adult, Mr. Walker has been convicted eighteen additional times. His convictions include: possession of a controlled substance, carrying a concealed weapon without a permit, wanton endangerment, possession of cocaine base with intent to distribute, possession of crack cocaine, felon in possession of a firearm, disorderly conduct, three no operator's license convictions, reckless operation of a vehicle, speeding, seatbelt violation, three driving under suspension convictions, and driving under the influence. Mr. Walker also has eight pending charges, one of which is a domestic battery charge. Additionally, forty-seven other charges against Mr. Walker since the time he was thirteen were either dismissed, dropped, or have an unknown disposition. Despite his very lengthy criminal history, courts and prosecutors have repeatedly given him leniency. In the twenty years since Mr. Walker turned eighteen, he served approximately 7.8 years in prison, most of which was the five-year sentence imposed for a single drug conviction in 1998.

         For most of his life, Mr. Walker has been involved with illicit drugs. He began using marijuana at age twelve, cocaine at age thirteen, alcohol at age twenty, PCP at age twenty-six, pills such as Subutex, Roxicodone, and Xanax around age twenty-six, and heroin at age thirty. He admitted that he continued to use marijuana, cocaine, alcohol, pills, and heroin through the time of his arrest for this matter. Additionally, there is evidence to suggest that Mr. Walker mixed violence and threats of violence with his criminal drug and firearm activity. Cory Corns, an individual interviewed by the Metropolitan Drug Enforcement Network Team (“MDENT”), stated that Mr. Walker accused him of stealing heroin and money, and pistol-whipped him and his seventeen-year-old roommate. William Ennis, Cory Corns's roommate, also stated that he had been pistol-whipped by Mr. Walker.

         In addition to Mr. Walker's voluminous criminal history, the particular facts of this case trouble me. Beginning on April 12, 2016, confidential informants (“CIs”) working with MDENT conducted seven controlled buys from the defendant over the course of several months. During each of the controlled buys, the CIs purchased heroin, fentanyl, or a mixture of the two drugs. In total, Mr. Walker sold 0.729 grams of heroin, 0.071 grams of fentanyl, and 0.17 grams of a furanyl fentanyl and heroin mixture to the CIs. On July 12, 2016, during the last controlled buy, Mr. Walker told the CI that some of Mr. Walker's other purchasers had recently overdosed and warned the CI to use cautiously. It appears Mr. Walker was engaged in a continuing drug dealing enterprise. Based on the controlled buys, MDENT agents obtained an arrest warrant for the defendant and a search warrant for the apartment from which the defendant sold heroin on July 12, 2016.

         On July 14, 2016, MDENT agents executed the warrants. The agents arrested the defendant as he entered a vehicle. The agents searched the defendant incident to arrest and discovered 9.7 grams of marijuana, 2.081 grams of powder cocaine, and 0.845 grams of a heroin and fentanyl mixture. The agents then executed the search warrant and recovered a set of digital scales, one bag of a white substance, one Newport box with a suspected methamphetamine pipe, one bag of suspected marijuana, five boxes of 0.45 caliber ammunition, two pistols, miscellaneous medical items containing the defendant's name, and the cell phone used during the controlled buys.

         b. Rule 11 of the Federal Rules of Criminal Procedure

         Rule 11 of the Federal Rules of Criminal Procedure grants a district judge the power to accept or reject a plea agreement.[9] The court enjoys “broad discretion . . . when choosing to accept or reject plea agreements”[10] and “is not obligated to accept any recommendation or bargain reached by the parties.”[11] The Advisory Committee Notes to Rule 11 expressly state: “The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual trial judge.”[12] Other than granting the court broad discretion to accept or reject a plea agreement, Rule 11 provides no further guidance for the court.

         c. Cultural Context

         The plea agreement proffered by the parties in this case was made in the context of a clear, present, and deadly heroin and opioid crisis in this community. West Virginia is ground zero.

         i. The Heroin & Opioid Crisis

         The heroin and opioid crisis is a cancer that has grown and metastasized in the body politic of the United States. Heroin and opioids are different from other addictive substances.[13] The principal difference lies in the fact that recreational use is too often deadly. The questionable level of potency in each dose of heroin frequently causes overdose.[14] All too often news stories emerge of “bad batches” that cause a deluge of fatal overdoses.[15] Furthermore, users develop a tolerance over time and, as a result, seek out the highest potency possible without regard to the related risk of death. The Centers for Disease Control and Prevention (“CDC”) found that between 2012 and 2014, heroin caused the most overdose deaths of any drug.[16]

         Heroin use has increased across the United States in all genders, in most age groups, and in all income levels.[17] “Some of the greatest increases [have] occurred in demographic groups with historically low rates of heroin use: women, the privately insured, and people with higher incomes.”[18] It is estimated that 580 people initiate heroin use each day.[19] This rapid increase in heroin use has had deadly consequences. Between 2002 and 2013, the rate of heroin-related overdose deaths per 100, 000 people increased 286%.[20] The number of drug overdoses involving heroin tripled from 2010 to 2014.[21] In 2015, heroin caused 12, 989 deaths.[22] Heroin arrests by the Drug Enforcement Administration (“DEA”) increased at the fastest annual average rate from 2002 to 2014.[23]

         In addition to heroin, there is a surge in the popularity of fentanyl and other powerful synthetic opioids.[24] The DEA estimates that “[a]bout two milligrams of fentanyl-about what comes out with a single jiggle of a salt shaker-is considered lethal.”[25] Fentanyl and synthetic opioids are particularly dangerous because they can be-and often are-mixed with other drugs without the consumer's knowledge.[26] The national overdose death rate from synthetic opioids increased 72.2% from 2014 to 2015.[27] Illegally made fentanyl is likely the driving force of this increase.[28] According to the National Forensic Laboratory Information System, state and local labs reported 942 fentanyl submissions from law enforcement in 2013 and 3, 344 fentanyl submissions in 2014.[29] From 2013 to 2014, the CDC reported significant increases in overdose deaths involving fentanyl in several states.[30]

         More dangerous opioids are being developed in order to meet growing demand. An example is furanyl fentanyl, a synthetic designer opioid, commonly referred to as “China White.”[31] Furanyl fentanyl can be up to 100 times more potent than heroin.[32]Its effects last longer, and an overdose is more difficult to treat than one caused by heroin alone.[33] Traditional naloxone treatment is often not enough.[34] Laboratory analysis confirmed furanyl fentanyl in Mr. Walker's July 12, 2016 controlled buy.

         Another synthetic opioid on the rise is carfentanil, a drug lawfully used to sedate elephants and other large animals.[35] It is an even more potent version of fentanyl often used to “lace” heroin.[36] Carfentanil is 10, 000 times more potent than morphine.[37] Because of carfentanil's tremendous potency, it poses a tremendous risk to users and first responders who inadvertently come into contact with the drug in the course of their duties.[38]

         The heroin and opioid epidemic is one of the great public health problems of our time. The CDC found that opioids, primarily prescription pain relievers and heroin, are the chief drugs associated with overdose deaths.[39] In 2015, the most recent year for which data is available, opioids were involved in 33, 091 deaths, [40] which is more than 63% of all drug overdose deaths.[41] On average, ninety-one Americans die from an opioid overdose every day.[42] Preliminary numbers for 2016 suggest that overdose deaths are growing at a rate comparable to the rate of H.I.V.-related deaths at the height of the H.I.V. epidemic.[43]

         In a November 2016 report, the DEA referred to opioid prescription drugs, heroin, and fentanyl as the most significant drug-related threats to the United States.[44] Indeed, opioid overdoses have quadrupled nationally since 1999.[45]According to the CDC, the significant increase in overdose death rates is attributable to synthetic opioids such as heroin and fentanyl.[46]

         These drugs are far more dangerous and far more available for abuse. Opioids are in the medicine cabinets of homes all over America and are available at every hospital and doctor's office. With the rise of prescription opioid abuse, [47] heroin, which up until recently had been a tiny fraction of the illicit drug trade, came roaring back.[48]The return of that pale horse[49] may prove to be the event horizon of drug abuse and addiction.

         ii. West Virginia's Epidemic

         West Virginia has the highest rate of fatal drug overdoses in the nation-and that rate continues to rise.[50] This past year, 86% of overdose deaths involved at least one opioid.[51] From 2001 to 2016, the number of people in the state who died from a drug overdose increased 400%.[52] Our state's fatal drug overdose rate was 41.5 per 100, 000 people in 2015, [53] far above the national average of 16.3 per 100, 000 people.[54]The West Virginia Health Statistics Center released information that showed that at least 844 people in the state died of drug overdoses in 2016, [55] an increase of 16.9% from 2015 to 2016.[56]

         The rate of drug overdose deaths involving synthetic opioids in West Virginia increased 76.4% from 2014 to 2015.[57] In just the last three years, fentanyl use has increased tenfold in West Virginia.[58] The vast majority of patients at the Addiction Program at West Virginia University Hospitals are treated for heroin.[59] Along with Massachusetts, New Hampshire, Ohio, and Rhode Island, West Virginia experienced the largest absolute rate change in death from synthetic opioids.[60]

         The Southern District of West Virginia has been hit especially hard. Last August, twenty-six people overdosed during a four-hour span in Huntington.[61]National press reporters quote local health officials as estimating that one in four Huntington residents abuses heroin or some other opioid, [62] meaning that approximately 12, 000 people are dealing with opioid addiction[63] in a town of 50, 000 people.[64] In April, a pregnant mother in Charleston overdosed at ten o'clock on a Wednesday morning, killing both herself and her unborn baby.[65] No one is immune from the epidemic.

         West Virginia leads the nation in the incidence of babies born exposed to drugs[66] and has the highest rate of babies born dependent on opioids.[67] In Huntington, for example, one in ten babies born at the hospital suffers withdrawal from substances such as heroin, opiates, cocaine, or alcohol.[68] That is about fifteen times the national average.[69]

         The heroin and opioid crisis in our state implicates the general welfare in a preeminent way. Public safety is the purpose of the criminal justice system. The seriousness of this crisis in West Virginia convinces me that I should carefully scrutinize plea agreements that bargain away multi-count grand jury indictments. Grand jurors are members of our community who have, under their oaths, investigated, and determined that there is probable cause that certain crimes have been committed by the defendant named in the indictment.

         d. Plea Agreements

         Before discussing the plea agreement in this case, I will briefly look at the history of the practice of plea bargaining in the federal courts.

         Up until the nineteenth century, plea bargaining was not a regular or visible part of the criminal justice system.[70] Prior to the Civil War, the general judicial practice was to discourage guilty pleas.[71] The proffered explanation for the emergence of plea bargaining was a rising crime rate, limitations of local law enforcement resources, and busy dockets.[72] Since 1908, the first year that federal court statistics are available, the rate of guilty pleas has continued to rise.[73] However, it was not until 1971 that the Supreme Court legitimized plea bargaining in Santobelo v. New York., [74]

         The national implementation of the mandatory United States Sentencing Guidelines in 1989 encouraged the plea bargaining process by shifting a large portion of sentencing decision-making, historically reserved for the judge, to the prosecutor.[75] Prosecutors could use adjustments[76] and departures[77] as incentives to persuade defendants to accept plea agreements.[78]

Proponents of plea bargaining have long relied on “practical reasons” as justifications for the practice.[79] Prominent among these advantages are assertions of cost effectiveness, efficiency, certainty, and reduction in the burden on the court system.[80] The most commonly cited justifications are docket pressure and overburdened prosecutors and judges.[81] I am juberous of these assertions. As I detail herein, although widely accepted, the “overburdened” justification for plea bargaining is empirically unsupported.[82] I agree with Judge Jennifer Walker Elrod, Circuit Judge for the United States Court of Appeals for the Fifth Circuit, who has stated: “[W]e must strive to correct any public misconception that the courts are overworked and backlogged. . . . [W]hen the myth of backlogged courts is raised as a reason for forsaking the jury, we must correct them.”[83]


         The United States Constitution makes plain that the United States is a participatory democracy. This is a government of the people and by the people. Each of the three branches of government depend upon and require the active participation of the people in the exercise of power.[84]

         The exigencies of a changing world have required acceptance of processes that are more streamlined than those contemplated by our Founding Fathers.[85] Plea bargaining is one such process that we have come to embrace. Plea bargaining eliminates the jury and conflates the judge's and prosecutor's roles, creating an administrative system of criminal justice.[86] A species of trial does indeed occur, but it occurs in “the shadow of guilty pleas” rather than in open court.[87]

         Without question, resolution of criminal charges by plea bargaining has replaced resolution by jury trial.[88] I concede that plea bargaining is an efficient and convenient system and that public participation in government is inherently inconvenient. Governance by decree is expedient. However, the Founding Fathers intended the wheels of justice to grind slowly and exceedingly fine in order to discern the truth.[89]

         In 1908, about 50% of all federal criminal convictions were obtained by a guilty plea.[90] By 1916, the rate had risen to 72%, and by 1925, guilty pleas represented nearly 90% of all convictions.[91] In 1993, the rate of guilty pleas was 88.5%.[92] That number increased to 97.1% in 2015 with a criminal trial rate of only 2.9%.[93] Data provided by the Administrative Office of the United States Courts (“AO”) further confirms that the number of criminal defendants terminated by trial has decreased significantly since 1970.[94] In fiscal year (“FY”) 1973, the judiciary completed 8, 529 criminal trials, but in FY 2016, the judiciary completed 1, 859 criminal trials.[95]

         In the Southern District of West Virginia, there have been only eighteen criminal trials since January 2013. There have only been five criminal opioid trials in this district during that time. From 2014 to 2017, there were less than 250 individual drug sentences handed down by all of the judges of this court. The last heroin case in this district tried to verdict was in 2014.[96]

         For at least the past forty-six years, the primary justification for plea bargaining has been that the constitutional process of requiring trial by jury in every case overburdens the courts and overworks the prosecutors.[97] I believe these justifications, and others, diminish the right of the people to participate in the administration of the criminal justice system to a near vanishing point. We now resolve almost every criminal case by a process that is no longer justified by the circumstances making it acceptable in the first place. The courts are no longer overburdened. Federal prosecutors are no longer overworked. To illustrate, despite the decline in criminal trials, the number of federal prosecutors has steadily increased since 1970.[98] According to the Annual Statistical Reports (“ASRs”) published by the Executive Office for United States Attorneys, between FY 1970 and FY 2010, the average number of federal prosecutors increased more than sevenfold- from 809 in 1970 to 6, 075 in 2010.[99] In FY 2016, the number of federal prosecutors had grown to 6, 293.[100]

         FIGURE 1:

         (Image Omitted)

         Given the inverse relationship between trials and federal prosecutors, there has been a steady decrease in the average number of criminal trials handled per federal prosecutor.[101] In FY 1973, each federal prosecutor handled over eight criminal trials on average. By FY 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.

         FIGURE 2:

         (Image Omitted)

         FIGURE 3:

         (Image Omitted)

         It is no surprise that the judiciary has also experienced a decreased criminal trial load.[102] Like federal prosecutors, the number of authorized Article III district court judgeships rose from 394 in 1970 to 663 in 2015.[103] Accordingly, the number of criminal trials handled per district judgeship dropped from over twenty-one per year in 1973 to fewer than three per year in 2016.[104] Thus, like federal prosecutors, district court judges are not overburdened by trials.

         Because the most common justifications for plea bargaining no longer have any substantial heft, the counterweight of the people's general interest in observing and participating in their government requires close consideration of a proffered plea bargain in every case.

         I conclude that courts should reject a plea agreement upon finding that the plea agreement is not in the public interest.[105] There is no justice in bargaining against the people's interest.

         First, a court should consider the cultural context surrounding the subject criminal conduct. Here, that cultural context is a rural state deeply wounded by and suffering from a plague of heroin and opioid addiction.[106]

         Second, the court should weigh the public's interest in participating in the adjudication of the criminal conduct charged by the indictment. The criminal jury trial is “fundamental to the American scheme of justice”[107] and effectively promotes a motivated and educated populace that respects the law, holds faith in the judicial system, and is deterred from participating in crime.[108] Jury trials serve the people's right to be informed as to what occurs in their courts and reinforce the fact that the law comes from the people.[109] Here, the public has a high interest in the adjudication of heroin and opioid crimes such as these because of the severity of the crisis occurring in our state. Education about and deterrence of heroin and opioid crimes is of paramount importance at this time.

         Third, the court should consider whether “community catharsis can occur” without the transparency of a public jury trial.[110] “Much like the lid of a tea kettle releases steam, jury trials in criminal cases allow peaceful expression of community outrage at arbitrary government or vicious criminal acts.”[111] The crimes alleged in Mr. Walker's indictment involve heroin and other opioids and are “vicious criminal acts.”

         Fourth, the court should examine the plea agreement and, in light of the presentence report, determine whether the apparent motivation is to advance justice or, more probably, to expediently avoid trial. Here, the agreement trades a grand jury indictment charging three counts of distributing heroin, two counts of distributing fentanyl, and one count of being a felon in possession of a firearm for ...

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