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United States v. Wilmore

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

October 10, 2017





         Fifteen weeks ago, I rejected the proffered plea agreement in the case of United States v. Charles York Walker, Jr.[1] after determining that it was not in the public interest. I must now decide whether, under Rule 11 of the Federal Rules of Criminal Procedure, to accept or reject the plea agreement between the defendant, Mr. Antoine Dericus Wilmore, and the government. As I noted in Walker, while Rule 11 gives defendants and prosecutors the ability to enter into plea agreements, it also obligates judges to accept or reject those agreements.[2] Rule 11 is silent on what I should or may consider in my 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. The public cannot learn about or properly react to the conduct taking place in the streets of Charleston when that conduct is buried in a plea agreement dismissing the bulk of the provable criminal charges. 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, a federal grand jury in Charleston, West Virginia returned an eight-count indictment against Antoine Dericus Wilmore in case number 2:16-cr-00177.[3] The indictment charged the defendant with four counts of distributing heroin in violation of 21 U.S.C. § 841(a)(1); one count of aiding and abetting the distribution of heroin within 100 feet of a school in violation of 21 U.S.C. §§ 841(a)(1), 860, and 18 U.S.C. § 2; one count of aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1); one count of possessing with the intent to distribute a quantity of heroin in violation of 21 U.S.C. § 841(a)(1); and one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i).[4]

         On May 3, 2017, the defendant and the government entered into a plea agreement.[5] The defendant agreed to plead guilty to Count Eight of the Indictment, which charged him with distributing heroin in violation of 21 U.S.C. § 841(a)(1).[6] In return, the government agreed to dismiss Counts 1-7 of the Indictment upon final disposition of the case.[7] At Mr. Wilmore's May 18, 2017 plea hearing, he pled guilty to Count Eight of the Indictment.[8] I accepted Mr. Wilmore's guilty plea, but I deferred acceptance of the plea agreement pending review of the defendant's presentence investigation report.[9] I have since reviewed this report.

         Mr. Wilmore's presentence report reveals that he has a rather sparse criminal history. His convictions consist of driving infractions and a noise ordinance violation. However, the presentence report also details the investigation into the defendant's drug distribution activities, which occurred from April to August 2016. The investigation consisted of eight controlled buys, two executed search warrants, and a trash pull from the curb of the defendant's residence.

         The presentence report details the following facts regarding the charged conduct. In April 2016, Mr. Wilmore moved to the Southern District of West Virginia from South Carolina. The first controlled buy occurred within his first month as a West Virginia resident. On April 13, 2016, a confidential informant (“CI”) working with the Metropolitan Drug Enforcement Network Team (MDENT) contacted the defendant to arrange a purchase of heroin. The defendant instructed the CI to meet him at the Rite Aid by Littlepage Terrace in Charleston. The CI purchased 0.75 grams of heroin from the defendant for $80.

         On May 27, 2016, MDENT officers conducted a trash pull at the defendant's residence. They found evidence indicating drug use and distribution.[10] Based on this information, the MDENT officers applied for and received a search warrant for this address.

         The second and third controlled buys occurred on May 31, 2016 and June 1, 2016. On May 31, the defendant instructed the CI to meet him at Walgreens on Washington Street West in Charleston. At 2:20 p.m., Mr. Wilmore arrived and sold the CI 0.6 grams of heroin. On June 1, Mr. Wilmore again told the CI to meet him at Walgreens. When Mr. Wilmore did not arrive, the CI called to inquire regarding his whereabouts. Mr. Wilmore told him to go to the rear parking lot of Stonewall Jackson Middle School. At that location, a man distributed 1.6 grams of heroin to the CI, and then returned to Mr. Wilmore's residence.[11]

         The next day, MDENT officers arrested Mr. Wilmore for possession with intent to deliver a controlled substance[12] and executed the search warrant on his residence. In the residence, the officers seized three guns and a safe containing five bags of heroin, one bag of marijuana, and two sets of digital scales. They also found $1, 331 in currency, eighty dollars of which was identified as the pre-recorded currency from the June 1 controlled buy. While in custody, Mr. Wilmore admitted that he had recently sold heroin and that he had been purchasing fourteen grams at a time from another individual. On June 10, the pending charge against Mr. Wilmore was dismissed and a criminal complaint was filed, charging the defendant with only possession of a controlled substance, less than 15 grams, in Kanawha County Magistrate Court. On June 10, 2016, he accepted a plea that subjected him to six months' probation and required him to forfeit his vehicle and the money and firearms found during the execution of the search warrant.

         Despite Mr. Wilmore's state sentence of probation, the controlled buys continued. On June 28, 2016, a CI contacted Mr. Wilmore to arrange a heroin purchase. Mr. Wilmore told the CI to go to KFC on Washington Street West, and he would send someone to meet him. At 3:03 p.m., a male arrived and delivered 0.5 grams of heroin to the CI. Later, this sample was tested and found to contain a mixture of heroin and fentanyl.

         On June 30, 2016, a CI attempted to buy heroin from Mr. Wilmore. Mr. Wilmore responded that the police “were out on foot” so he could only sell marijuana. The CI agreed, and Mr. Wilmore sent someone to deliver 2 grams of marijuana to the CI at 2:30 p.m. at the KFC on Washington Street West.

         On July 5, 2016, Mr. Wilmore sold 0.8 grams of heroin to a CI, who met him at 11:24 a.m. at the railroad tracks near Georgia Street. The substance was later found to contain a mixture of heroin and fentanyl.

         On July 6, 2016, a CI attempted to buy heroin from Mr. Wilmore. Mr. Wilmore, however, stated that he did not have any at the moment, but that he could sell him marijuana. Mr. Wilmore met the CI at the western entrance of the Town Center Mall at 10:37 a.m. and sold the CI 2.4 grams of marijuana.

         On August 8, 2016, a CI met Mr. Wilmore at Wendy's on Washington Street West. At approximately 12:32 p.m., Mr. Wilmore arrived and sold the CI 2.4 grams of heroin.

         On August 11, 2016, law enforcement officers conducted a traffic stop of a car driven by Mr. Wilmore pursuant to an arrest warrant obtained due to the criminal conduct that allegedly occurred on July 5. The officers arrested Mr. Wilmore and confiscated a cell phone in his possession that matched the number used to facilitate many of the controlled buys. Following Mr. Wilmore's arrest, officers went to a location where he commonly stayed and found additional marijuana and a set of digital scales.

         Ultimately, the presentence report attributes the following to Mr. Wilmore: distributing or possessing with the intent to distribute 12.761 grams of heroin, 0.609 grams of fentanyl, and 5.4 grams of marijuana; $1, 251;[13] and multiple firearms.

         b. Rule 11 of the Federal Rules of Criminal Procedure

         As I stated in Walker, Rule 11 of the Federal Rules of Criminal Procedure grants a district judge the power to accept or reject a plea agreement.[14] I enjoy “broad discretion . . . when choosing to accept or reject plea agreements, ”[15] and I am “not obligated to accept any recommendation or bargain reached by the parties.”[16]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.”[17]Other than granting the court broad discretion to accept or reject a plea agreement, Rule 11 provides no further guidance for the court.


         Because the common justifications behind plea bargaining “no longer have any substantial heft, ”[18] it is essential that courts reexamine the system. In this case, as I did in Walker, I will examine the plea agreement proffered and determine whether it is in the public interest.[19] To do so, I will take into account the four factors set forth in Walker: (1) the defendant's conduct in light of the cultural context in which it occurred, (2) the interest of the public in participating in adjudication of the conduct charged, (3) the public's ability to achieve community catharsis, and (4) the apparent motivation behind the plea agreement.[20] If I determine that the proffered plea agreement is not in the public interest, I will reject it.[21]

         a. The Defendant's Conduct in Light of the Cultural Context

         First, I will identify the cultural context surrounding the defendant's criminal conduct and evaluate the gravity of the defendant's conduct in light of that context.[22]I have previously detailed the severe and devastating impact that the opioid crisis has had on this country and, particularly, on West Virginia.[23] Since then, the statistics have grown only more frightening. From 2015 to 2016, the number of deaths caused by heroin overdoses increased by nearly 17%, and the number caused by fentanyl (and its analogues) more than doubled.[24] Together, heroin, fentanyl, and prescription opioids currently account for nearly 78% of all drug-related deaths in 2016.[25] The devastation caused by synthetic opioids will only increase as the drugs spread and additional analogues are created, gradually infecting and destroying the body politic.

         It is clear that the influx of fentanyl and its analogues is exacerbating an already deadly epidemic.[26] Moreover, many people who use fentanyl and other synthetic opioids are unaware that they are doing so.[27] Fentanyl is cheap, easy to produce, and extremely potent.[28] Thus, the nation's illicit drug supply, especially its heroin, is increasingly laced with synthetic opioids, such as fentanyl.[29] For this reason, heroin users who fail to question what they are buying or who unwittingly, and mistakenly, trust their dealers never know which hit will be their last. They are playing an addict's game of Russian roulette with the dealers supplying the loaded guns.

         My experience leads me to believe that most dealers neither know nor care if what they are selling as heroin has been adulterated. Such adulteration actually gives the dealer a competitive edge and keeps the customers hooked on that supply.[30]Even an overdose here and there can be good for business. “If word of an overdose from the lethal bag spreads, drug users seek out the dealer-because they know that dealer has the strongest product, the best fix for the money.”[31]

         Mr. Wilmore's conduct was clearly that of a businessman. He moved to the Southern District of West Virginia in April 2016, and he sold heroin to a CI on the thirteenth of that month. Never a heroin user himself, [32] Mr. Wilmore exploited the rampant addiction in the Southern District of West Virginia in order to turn a profit.[33] During a time period of less than four months, CIs conducted eight controlled buys from the defendant, six of which were heroin sales and two of which were marijuana sales. An arrest and conviction during this four-month period did not deter the defendant from continuing his criminal enterprise. Following his arrest, Mr. Wilmore pled guilty to possession of a controlled substance in state court and was placed on six months' probation. Two weeks into his probation sentence, he sold a mixture of heroin and fentanyl to a CI. This was not the only time Mr. Wilmore sold fentanyl. Over the course of two controlled buys, the defendant was involved in the sale of 0.609 grams of fentanyl.[34] This means that in the combined 1.3 grams of substance sold as “heroin” on these two occasions, there were between 200 and 300 lethal doses of fentanyl.[35]

         Mr. Wilmore disregarded the public safety not only by distributing deadly substances but also by doing so in a dangerous manner. Contrary to popular imagery, not all drug deals take place in back alleys in the dead of night. As Mr. Wilmore's conduct makes clear, armed dealers[36] are selling drugs in broad daylight at our local Walgreen's, at the Town Center Mall, and even in the parking lot of our children's middle schools.

         b. The Public's Interest in Participating in Adjudication of the Criminal Conduct Charged

         Next, I must evaluate the public's interest in participating in the adjudication of the criminal conduct charged.[37] Of paramount importance is the public's deeply-rooted interest[38] in a criminal trial by jury. This interest increases in direct proportion to the severity of the threat to the safety of the community from which the jury will be selected. Thus, when criminal activity is carried out in the context of a dangerous and devastating epidemic and involves conduct so dangerous to the Southern District of West Virginia, the public's interest in participation is at its zenith.

         Juries are vital to a vibrant democracy[39] and to a transparent and effective criminal justice system. This is a government “of the people, by the people, for the people.”[40] The public holds a collective interest that litigants and jurists cannot disregard or discard. In criminal cases, the interest in a jury trial is so important the Constitution mentions it twice. Article III section 2 of the Constitution states: “The Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed . . . .”[41] The Sixth Amendment of the Bill of Rights states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”[42] Article III gives citizen-jurors “a non-waivable, structural check on judicial and prosecutorial overreaching.”[43]Notably, Article III is not phrased as an individual right like the Sixth Amendment, and it has not been interpreted as such. “It was meant to be a right of We the People to administer justice, not simply a right of defendants to waive (or be coerced into waiving).”[44] Additionally, despite the Sixth Amendment's phrasing and interpretation as an individual right of the accused, this right is limited by the public's collective interest bestowed in Article III.[45] The criminal jury trial inherently furthers the ideals of deterrence, retribution, and rehabilitation, and it maintains an appropriate balance of power between the three branches of government.[46] The plea bargaining process is eroding these democratic values. As the late William J. Stuntz observed, the plea bargaining process

is a modest problem or no problem at all when the number of criminal trials is high: the public can see how the system functions in a large fraction of its cases, and prosecutors and defense attorneys alike must strike plea bargains with an eye toward likely trial outcomes. When trials are rare events, as is the case today, the public sees little. . . . Plea bargains are no longer a means of settling easy cases, which is their proper role. Rather, guilty pleas and the quick bargains that precede them have become the system's primary means of judging criminal defendants' guilt or innocence.[47]

         Thus, the United States criminal justice system has transitioned from a realm of public participation to one of public exclusion where justice is dealt and plays out in backroom deals and empty courtrooms.[48] The Founding Fathers “had no intentions of leaving criminal punishment to the government.”[49] Today, however, most adjudications of guilt are determined by agreement between the government and the defendant.[50] In this district's standard plea agreement, even the defendant's right to appellate review is contingent on the conformance of the judge's sentence to the guideline calculation agreed to by the parties. Such an administrative system where the prosecutor acts as judge and jury poses a danger that the Framers intended to prevent.[51]

         c. The Public's Ability to Achieve ...

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