THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, December 5, 1995 TAG: 9512050279
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 107 lines
A federal judge on Monday opened the door for the possible dismissal of charges against up to 25 drug defendants by ordering a hearing to determine whether federal prosecutors charged the defendants based on race.
All the defendants are black and are alleged to be part of three separate drug gangs that sold crack cocaine in Williamsburg and James City and New Kent counties. The alleged leaders - Anthony L. Olvis of Williamsburg, Terry D. Jones of Toano and Marty L. Wright of Virginia Beach - were arrested in September with their co-defendants.
Federal, state and local officials announced then at a press conference that they had put a significant dent in drug dealing activities on the Peninsula. In three separate indictments totaling 159 pages, federal authorities charged the defendants with more than 100 charges, including conspiracy to distribute crack cocaine, possession with intent to distribute, use of a firearm, money laundering, obstruction of justice and perjury.
But just before Olvis and co-defendant Angela Palmer went to trial on Nov. 6, their defense attorneys discovered in grand jury transcripts that five of the witnesses appearing before grand jurors were white and ``were more than peripherally involved in the conspiracy,'' court records said. But they were granted immunity for their testimony, unlike some black witnesses similarly involved who were charged, court records said.
James Ellenson, Olvis' attorney, made a motion to dismiss the indictments based on ``selective prosecution'' of blacks in crack cocaine cases in the Eastern District of Virginia, which includes the federal courts in Norfolk, Newport News and Richmond. Ellenson accused federal prosecutors of treating black defendants ``in a discriminatory matter,'' his motion said.
The alleged selective prosecution of blacks is a hot issue in federal courts nationwide. Prosecutors admit that more blacks than whites are charged in crack conspiracy cases, but they claim that their indictments are based on the evidence, not race. In November, Norfolk U.S. District Judge Raymond A. Jackson asked prosecutors for information on selective prosecution in the Williamsburg case. Federal prosecutors refused to turn it over, citing federal law. On Monday, Jackson charged the prosecutors with ``frustrating the court's inquiry'' with their ``arrogant, high-brow response.
``I don't have any doubt if I order an evidentiary hearing that I'll get better statistics and better information than I've got now,'' Jackson said. ``If I don't, these indictments are out the door.''
On Monday, defense attorneys told Jackson, a former federal prosecutor, that considerably more blacks are prosecuted than whites in Hampton Roads' two federal courts.
Sterling Weaver, Palmer's attorney, used federal court records to support that claim.
Since 1992, of the 250 crack cases tried in Norfolk federal court, defendants' races could be determined in 226, Weaver said. Of those, he said, 210 were black, eight were white, six were Hispanic, one was Jamaican and one Italian. During the same period in the Newport News federal court, of the 62 crack cases tried, race could be determined in 59. Of these, 50 defendants were black, two Asian and seven white.
The issue is compounded by federal sentencing guidelines. Federal law imposes a minimum sentence of 10 years and a maximum of life for those convicted of selling more than 50 grams of cocaine base, or crack. By contrast, Virginia law calls for a range of 5 years to 40 years for crack distribution. Recent riots in federal prisons across the nation were sparked by inmates' anger over stringent federal sentences.
In Hampton Roads, crack cocaine cases usually come to federal court in one of two ways. Local police ask federal authorities to look at the case, primarily because the federal sentences are tougher. Or federal agents charge defendants after investigations by drug task forces made up of federal, state and local police.
The investigation of the three gangs - dubbed ``Operation Triple Play'' - was conducted after local authorities unsuccesfully tried to get a special prosecutor assigned to the case. Lt. Delmas Linhart of the Colonial Narcotics Enforcement Task Force said that increasing levels of violence by gang members and the ``insulation from prosecution'' of the three alleged leaders also led him to contact the FBI.
The three gangs allegedly staked out separate territories and worked as friendly competitors, sometimes sending customers to other gangs when they ran out of drugs. But police have also alleged in documents and testimony that there was considerable violence associated with the gangs, including beatings, shootings and possibly murder.
Assistant U.S. Attorney Kevin Comstock testified Monday that he could recall five cases he prosecuted since May 1992 in which defendants were of different races. ``Race was not a factor in the prosecution of these cases,'' he said.
But Ellenson and Weaver argued that white witnesses in the Williamsburg case were treated more leniently than blacks. A white woman who was ``heavily involved'' with one group was not indicted after she came to an investigator in September 1993. Although she drove one defendant around while he sold drugs, she was not considered violent, Linhart testified.
The main purpose in the first round of arrests was to nab the kingpins and those associated with violence, Linhart said. Addicts like the white woman were not arrested in September, he said. But another witness, a white male, was the driver in two drive-by shootings, yet was given blanket immunity, defense attorneys said.
Prosecutor Justin Williams denied the man got blanket immunity, but conceded that some of the information investigators received would not have been possible without him. Prosecutors later said no one was hurt in the two shootings.
Jackson scheduled an evidentiary hearing for Dec. 20.
KEYWORDS: DRUGS ILLEGAL CRACK RACE HEARING BIAS by CNB