Start, Stay, or Leave
Start at the End
As you’re thinking about starting something—whether it’s a new career or a new relationship, a new hobby or a new investment, starting fresh in a new city or starting to get more serious about your health—whatever it is, I have found it’s best to start at the end. By creating a clear picture in your mind of your final destination, you will be better equipped to make decisions that ensure you reach that desired place.
Writing the Closing Argument
Federal murder cases are rare.
Because people tend to equate “federal crime” with “more serious crime,” they are often surprised to learn that the vast majority of murder cases are prosecuted not in federal but in state court, tried by state prosecutors. Only certain categories of murder warrant jurisdiction in the federal system—such as the murder of a federal judge, the murder of a federal law enforcement officer in the line of duty, or the murder of a federal witness.
Prior to 1995, there had been only one federal murder prosecution in twenty-five years in the Upstate of South Carolina. Our state is divided into four regions. There is the Low Country near the beach (think Charleston). There is the region called the Midlands, which is where our capital of Columbia is. There is the Pee Dee region, which is largely agricultural. And there is the Upstate, which is a region connecting Atlanta, Georgia, to Charlotte, North Carolina, along Interstate 85. That’s where I live and have worked, and the region I represented in Congress.
Just once in a quarter century had there been a federal murder case in my home region. But there would soon be two. The second one involved the murder of one of my own witnesses. I had just turned thirty years old and was still early into my career as a federal prosecutor. I was in a courtroom in Anderson, South Carolina, long before the advent of cellphones. We used pagers back then and my pager was vibrating a lot while I was in court that day. You don’t look down at your pager while you are in federal court, so I waited for a break and what I saw was a series of 911 pages from law enforcement officers. I hurried back to the judge’s chambers, which were adjacent to the courtroom, to use the nearest landline. When I reached one of the federal agents who had been paging me, his response was immediate and direct: “Ricky Samuel has been killed.”
Ricky Samuel was a young man from Spartanburg, South Carolina, who had been in some relatively minor legal trouble, but he was trying to change the course of his life. His current challenge was a pending federal drug case. The drug amounts were small but, as you will soon learn, even a small amount of drugs can have a significant impact on your life. Ricky was lucky in that he had a mother who loved him very much and was tougher on him than the court system was ever going to be. He also had a new girlfriend, and the thought of going to federal prison for any period of time was not likely to enhance this new relationship. Ricky had a decision to make. He could serve several years in federal prison for narcotics dealing or he could try to reduce his exposure to prison time.
The federal drug system works like this: There are mandatory minimum prison sentences for even relatively small amounts of drugs. Five grams of cocaine base, commonly referred to as crack cocaine, equaled a mandatory minimum five years in prison. Fifty grams of cocaine base equaled a mandatory minimum ten years in federal prison. A gram is the size of a packet of Truvia or Sweet’N Low. Ricky was charged with possessing an ounce of cocaine base, and even by pleading guilty and fully accepting responsibility, he would have received more than five years in federal prison. There is no parole in federal court so he would have served the overwhelming majority of whatever sentence was imposed.
The only way to reduce one’s exposure to prison time, once arrested or indicted, is to cooperate with the government and have the government petition the court for a shorter prison sentence at the time of the sentencing hearing. Cooperating with the government means providing historical information on who one’s drug suppliers were or who were the partners or co-conspirators in the drug ring. Cooperating could also include more active work such as wearing a wire during an undercover drug transaction. In fact, the most significant cuts to prison sentences were often reserved for those who took the most risks in cooperating with the government. Wearing a wire and conducting undercover drug transactions were risky.
I had hundreds of conversations with young men, and a few women, like Ricky Samuel, who had that choice to make: do the time or cooperate and deal with the consequences of being labeled a “rat.”
The federal agents and I laid out Ricky’s options for him and his mother, and Ricky made the decision to cooperate with federal law enforcement in their investigation of a large South Carolina narcotics trafficking ring with ties to Florida.
In reality, it was not much of a decision. Prison would be hard for Ricky. He was small in stature and had a slightly deformed arm, which would have made self-defense, often a necessity there, harder for him. He was not violent; he was just another young man who stopped his education too soon for the lure of easy and fast money. We shared with him that there were risks associated with cooperation, much like the doctor who goes over the risks before giving a flu vaccine or having relatively minor surgery. Yes, there is a chance something bad will happen, but the chances are so small that they tend not to even register. Until they do.
We asked Ricky to help us in our investigation into Tommy Pabellon. Pabellon was a drug dealer who had sold cocaine base in larger amounts than someone like Ricky Samuel. Law enforcement’s plan had Ricky, acting in an undercover capacity, purchase cocaine base from Pabellon. It would be what the cops call a “buy bust.” An informant, typically wearing an audio or video wire or both, buys drugs from a suspected dealer with marked money. The deal is set up via phone or pager and those conversations are recorded as well. A short time after the transaction is completed, the dealer is arrested and, more often than not, the marked money is in his possession. These cases are common and not particularly complicated. The evidence consists of the recorded calls setting up the transaction, video and audio surveillance of the transaction itself, and then the proceeds of whatever is on the suspect when the arrest is made.
Ricky did what he was told to do. The undercover drug transaction went down exactly as planned. Pabellon sold Ricky the drugs and was arrested a short time later and a short distance away with the marked buy money in his pocket.
Once Pabellon was arrested, he had the same opportunity Ricky Samuel and others had—plead guilty, go to trial, or cooperate and lessen his exposure to prison. Pabellon opted for trial and before the trial date was reached, the government had to produce what is called discovery, which is all of the evidence the government has as it relates to the defendant. The government tries to keep the identity of any informants or cooperating witnesses concealed for as long as possible, but inevitably those names are disclosed to the defense counsel, and then in turn the defendants themselves learn the identity of the informants. The disclosure of witness names is always a nervous time for prosecutors and agents and the witnesses themselves. Some defense attorneys share portions of the discovery with their clients but not all of it, and some defense attorneys just drop off the packets of information at the jail and allow the client to peruse the information for themselves. More than once discovery from one case has been found in the jail cell of another inmate. News about cooperating witnesses travels fast.
The disclosure of witness names is one part of the criminal justice system that vexes those outside the system and frustrates those inside the system, even though we understand why it is necessary. Defendants have a constitutional right to “confront” witnesses as well as the right to know what evidence exists and will be presented at trial. The Confrontation Clause is in our U.S. Constitution. Even children have to testify in the trials of those who abuse them, sitting alone in a witness chair surrounded by adult strangers with the defendant, the person who hurt the child, positioning himself squarely in the line of sight of the child. Our system affords significant safeguards to those accused of crimes, and part of that is knowing who the witnesses will be against that particular defendant.
It is a separate and serious crime to threaten or intimidate witnesses. But sometimes those already charged with violating the law show disregard for other parts of the law.