William M.
Nickerson
District of Maryland
. . . I am left with the rather mechanical job of
imposing a sentence that appears on a table, a life sentence in the federal
system, life without parole, some people may argue is a sentence more severe
than death. And whether I believe
that it is the appropriate sentence, is really not an issue.[1]
Regretfully, I have to conclude that there simply are no
factors either that would warrant legally speaking for factually under the law
my departing from the guidelines.[2]
Military
Experience:
U.S. Coast Guard, Ltd.
1955-59.
Law
School:
University of Maryland Law School,
LL.B., 1962.
Prior
Legal Experience: Whiteford, Taylor & Preston, 1962-85.
Prior
Judicial Experience: Associate Judge,
Circuit Court of Baltimore County, 1985-90.
Background and Reputation in the Legal Community
Judge Nickerson served in the United States Coast Guard
after college as an officer aboard Coast Guard cutters from 1955 to 1959. He attended law school at night at the
University of Maryland and obtained his LL.B. in 1962. Judge Nickerson then spent twenty-three
years practicing law with Whiteford, Taylor & Preston in Baltimore. As a lawyer, Judge Nickerson
participated in local bar associations and organizations, including the International
Association of Insurance Counsel, the Christian Legal Society, the Attorney
Grievance Commission of Maryland and the Christian Businessmen's Committee.
In 1985, he was appointed an Associate Judge for the
Circuit Court of Baltimore County.
After five years as a state judge, President George H.W. Bush appointed
him to the federal bench. He
remained on active status for twelve years before becoming a senior judge in
2002. As a federal judge, Judge
Nickerson gets strong reviews from attorneys. Comments included things like "practical," "honest,"
"fair-minded," "experienced," and "hard-working." More than one attorney expressed that it was a "pleasure" to
try a case in front of him because he will listen and "let you try your case." Lawyers on all sides of the aisle seem
to agree that Judge Nickerson is "fair" and shows no bias in criminal or civil
cases, with one stating that "He
has a sense of fairness that controls everything he does."
On sentencing issues, defense lawyers say that Judge
Nickerson is very fair and "as fair and decent as he can be." "He will do what
he believes is right - assuming the law allows him to do it." However, lawyers
also say that "he is tough on defendants whom he should be tough on. That would
be true in white-collar cases, as well as drug or violent crime cases."
Paul
Winestock & Derrick Curry Paul Winestock
Charge: Distribution of Crack Cocaine; Possession with Intent to District Cocaine and Crack Cocaine.
Sentence: Life without Parole (later modified by Sentencing Guideline Amendment to 360 months).
Projected Release Date: January 22, 2017.
Beginning in the fall of 1988, a loosely knit organization
dubbed the "Woodridge Group" (named for the area of Northeast Washington, D.C.
where many of the members lived) was the focus of an undercover investigation
that spanned nearly two years. The
government alleged that Paul Winestock and Norman Brown ran two interlocking
groups that distributed over two hundred pounds of illegal narcotics, mostly
crack cocaine, in the greater Washington, D.C. area from the fall of 1988 until
December 1990. The investigation
resulted in the indictment of thirty individuals, including Paul and Derrick
Curry, whose cases are also profiled here.[3]
The investigation of the Woodridge Group was aided in large
part by Paul's and Norman Brown's infatuation with cell phones. By claiming to be able to provide
untraceable and untappable cell phones, undercover agents supplied some of the
participants with phones that were actually being recorded by the government
pursuant to wiretap authorizations.[4] As a result,
the police had advance knowledge of their plans which allowed them to audio and
videotape some of the transactions and make seizures of drugs.
Accused of being one of the two ringleaders, Paul was
charged with substantive drug offenses, conspiracy, and with running a
continuing criminal enterprise ("CCE").
Along with seventeen others, Paul went to trial in November 1991. Sixty-nine days later, the jury
outright acquitted six defendants of all charges. Paul and his co-defendants were also acquitted of conspiracy
count and Paul was acquitted of
the CCE charge. However, he and
the remaining defendants were convicted of distribution and possession with
intent to distribute.[5]
When it came time for sentencing, the key issue was the
quantity of crack cocaine that would be attributed to Paul. The two counts on which he was
convicted included about seven kilograms of cocaine.[6] The
Guidelines' relevant conduct provision, however, required the court to assess
the total quantity involved in the entire course of conduct and that was
reasonably foreseeable to the defendant.
Because the police had run a two year investigation and had physical
evidence, audio and video tapes, and the testimony of multiple cooperators, the
government was able to provide evidence that Paul should be held accountable
for at least 15 kilograms of crack cocaine.[7] Thus, the acquittal
on the conspiracy count didn't result in a lower sentence for Paul.[8]
This quantity translated to an Offense Level of 42 under
the Guidelines in force at the time.[9] The PSI also
recommended that Paul be given a four level increase for his supervisory role
in a organization involving at least five individuals.[10] After some
argument, Judge Nickerson concluded that the Guidelines required this increase despite the fact
that the jury had acquitted Paul of both conspiracy and of running a continuing
criminal enterprise. With this
increase, Paul's offense level was literally off the sentencing grid at Level
48 (the highest offense level on the chart is 43). At Level 43, even though Paul had no prior arrests or
convictions, the Guidelines require a life sentence without parole, regardless
of criminal history.
When given the opportunity to speak, Paul raised a number
of legal issues about the high
penalties for crack cocaine. He
also criticized the government for what he saw as its effort to win at
sentencing what they had lost at the trial.[11]
However, he also remarked that he didn't "hold any animosity. I have learned a great deal from being
around all the attorneys, both United States government and the defense, and
all of the professional people I have come into contact with during the course
of my trial. They have inspired me
to educate myself and raise myself up to that degree of responsibility . . . ."[12]
Most fundamentally, however, Paul told Judge Nickerson that
Your Honor, I am here today to plead for
my life. Indeed, this is a most
important day, not only for myself, other lives, my family will be affected by
the proceedings taking place here today. . . . Your Honor, through this whole ordeal I have tried to show
the court that I am a responsible person.
I was released on bond to a halfway house. I never missed any hearings
or trial dates. . . . I did not try to run and hide. . . . I don't hold any
animosity.[13]
Your Honor, everyman deserves a second
chance at life. Most murderers and
rapists are given a second chance at life. I have never been in any trouble before. I have learned my lesson and ask for a
second chance.[14]
Judge Nickerson told Paul and his attorney that "I don't
know many judges who don't have lots and lots of personal concerns and
anecdotes with regard to what is wrong with the guidelines. But, the judiciary did not promulgate
the guidelines, congress did."[15] With regard to this case, he stated that "I have some
personal difficulties with the fact that this sentencing table shows the same
sentence whether it is a category I, or all the way through to a category
VI. That Mr. Winestock is a first
offender is a matter of concern to me."[16] Lastly, he
stated
I am very concerned over the issue about disparity and
proportion with regard to sentencings involving crack cocaine and young black
males. Statistics speak for
themselves in terms of what that means.
These are all matters that have been dealt with on a legal basis by the
higher courts and, accordingly, I am left with the rather mechanical job of
imposing a sentence that appears on a table, a life sentence in the federal
system, life without parole, some people may argue is a sentence more severe
than death. And whether I believe
that is the appropriate sentence, all things considered, is really not an
issue.[17]
Later, a retroactive amendment to the Guidelines reduced
the maximum offense level for drug quantity to Level 38 which allowed Paul back
into court.[18] At the
re-sentencing, Paul sought a downward departure for significant post-sentencing
rehabilitation. Judge Nickerson
held that he lacked the authority to do anything other than re-sentence Paul
based upon the Guideline amendment.[19] With his
offense level reduced to 38 and a four point increase for his role in the
offense, Paul was now at a Level 42 in Criminal History Category I with a
sentencing range is 360 months to life.
This allowed Judge Nickerson to impose something less than the life
sentence previously required and he gave Paul the minimum thirty years in
prison.
Unlike some other inner city drug rings, observers noted
that many of the participants in the Woodridge Group came from good families,
baffling many as to why they got involved in narcotics dealing when they had
other opportunities. Paul was one of these. He was raised in a stable home in Baltimore and he reports
that his parents have been supportive of him both before and after this case. He graduated from high school and had
just enrolled in community college a month before his arrest.[20] When asked why he got involved, Paul states simply that it
was "peer pressure."[21]
Paul is much clearer about the future and writes that he is
committed "to self rehabilitation," including taking advantage of educational
programs in prison. He also
maintains a strong relationship with his son who is doing well in school and
has received a basketball scholarship.[22] Sadly,
though, tragedy struck Paul's family in May 2005. His sixty-nine year old father was shot while leaving a
funeral. A young man started
shooting at someone else and Paul's father and a pregnant woman were killed and
two other people were wounded.[23] His mother's
health subsequently declined and she had to retire from her job.
With regard to his conviction, while he takes
responsibility for his conduct, after twelve years in prison, he thinks he has
served enough time for his offense.
Judge Nickerson's largely concurs. When asked years later about how much time he would
have preferred to have given to Paul, the Judge wrote that "had the guidelines
not prevented it, I expect that I would have imposed a sentence of fifteen, to
perhaps, twenty years, considering the absence of parole in the federal system."[24]
Compiled from Sentencing Transcript, PSI, PACER docket
sheet, appellate opinions, newspaper articles, inmate letters, correspondence
with the judge.
Derrick Curry
Charge: Conspiracy to Distribute Cocaine & Crack Cocaine;
Distribution & Possession with
Intent to Distribute Crack
Cocaine.
Sentence: 235 months.
Release Date: January 20, 2001 (pursuant to presidential pardon).
On the surface, no participant in the
Woodridge group was more unlikely than nineteen year-old Derrick Curry. Derrick is the son of Arthur Curry,
PhD., a retired Maryland high school principal who had spent over thirty years helping
African-American children stay in school and out of trouble. His siblings are
college graduates with successful careers and he was raised in a middle class
home with high expectations and strong familial support. At the time of his arrest, Derrick was
in community college, working towards a degree in criminal justice with dreams
of becoming a state trooper. His
first love, however, was basketball, and by all accounts, he was quite
talented.
Beneath the surface, however, Derrick
was having some troubles that led to devastating consequences. Although physically mature, Derrick was
slow to develop intellectually and socially. His IQ tested out in the low 80s and he had a significant
thumb sucking problem which lasted into his young adulthood, causing a severe
speech impediment. According to his
own family, Derrick was immature, naive, and unable to express his feelings, a
condition that worsened after his parents divorced.
Given these unresolved difficulties,
Derrick's only real happiness revolved around the basketball court and the
circle of friends he made there.
Unfortunately, these friends included some people who were also involved
with drugs, including Len Bias, the late NCAA basketball star whose cocaine
overdose ironically led to the legislation that mandated Derrick's sentence.[25] Another individual who hung out with this group was Norman
Brown, one of the leaders of the Woodridge Group. Norman was not an athlete, but rather was know for his
"street attitude" which Derrick and his middle class friends sought to
emulate. As Derrick's relationship
with his father and other family members soured, Derrick moved in with Norman
Brown just a few months before the take-down of the drug ring.
Although Derrick denied his involvement
for a long time, the police obtained substantial evidence that Derrick assisted
Norman Brown with his drug activities, twice videotaping Derrick exchanging
crack for cellular phones with an undercover officer and otherwise serving as
Norman's flunky.[26] The
government also obtained physical evidence against Derrick. On October 17, 1990, Derrick was
driving Norman's car when he became suspicious he was being followed. He parked and fled the area on foot and
called Norman on a wiretapped cell phone.
During the conversation, Norman asked, "Where the shit at?" Derrick
responded, "In the car. I parked
it in the rec center." When FBI
agents looked inside the abandoned car they discovered Derrick's textbooks and a huge rock of
crack cocaine which weighed about 1.10 pounds.[27]
Nevertheless, there was no evidence
that Derrick Curry's role was much more than that of a gofer for Norman Brown
over a period of about six months.[28] When he was
arrested, Derrick did not appear to be living the life of a drug dealer. His savings account held $150. He drove
his mother's car, was constantly asking his family for money, and he didn't use
drugs himself. After his arrest,
the government offered him a fifteen year sentence but only if he went
undercover and tried to implicate other drug dealers in the D.C. area.
Derrick turned down that plea offer due
to the danger involved and subsequently went to trial. He was found guilty on June 10, 1992.[29] At
sentencing, he was held accountable for between 1.5 and 5 kilograms of crack
cocaine, leading to an Offense Level of 38.[30] With no
previous record, Derrick sentencing range was 235-293 months and Judge
Nickerson gave him the minimum term while stating that, "Regretfully, I have to
conclude that there simply are no factors either that would warrant legally
speaking or factually under the law my departing from the guidelines."[31]
In comparison, one of Derrick's
acquaintances, Brian Tribble, received only ten years and a month because he
cooperated with the government.
Tribble became infamous in 1987 when he was acquitted of charges that
arose from the accusation that he had supplied the fatal dose of cocaine that
killed Len Bias. Even after that
incident, Tribble continued his drug activities and was implicated in the
Woodridge investigation. He pled
guilty and acknowledged that he and his associates had sold more than 110 pounds
of cocaine in an eighteen month period, while collecting hundreds of thousands
of dollars. However, because he had information the government could use, he
was granted a substantial assistance departure which allowed Judge Nickerson to
sentence Tribble to far less time than Derrick.[32]
After his conviction, Derrick's father
led a campaign to get his son out of prison. Many times, Dr. Curry expressed
his frustration with the situation, "I don't understand it, I have saved from
the judicial system literally hundreds of young men and young women. My own son, I could not save."[33]
Testifying before the Sentencing Commission and Congress, Dr. Curry did
not argue Derrick's innocence.
Instead, he noted that if he had been charged with powder cocaine rather
than crack, his sentence likely would have been no more than ten years (a state
prosecution would have resulted in even less time).[34]
Ultimately, Dr. Curry's efforts were successful. Eight years into his sentence, Derrick
became a free man when he was included among the 176 individuals who received a
presidential pardon or commutation from President Clinton before he left office. Interestingly, Derrick ended up serving
the amount of time Judge Nickerson felt would have been appropriate absent the
Guidelines.[35]
When he first released, he was elated
but also found freedom to be challenging.
He remarked that the first time the phone rang, he just stared at it and
that he mostly stayed in his father's house, "not entirely ready to face life
on the outside," after eight years in prison."[36] However, he
was able to adjust and Derrick now works with troubled teens.
Complied from PSI, news articles,
psychiatric evaluation, appellate opinion, Testimony of Dr. Curry before the
United States Sentencing Commission, PACER docket sheet, inmate letters.
Sentencing Transcript at 48, United States v. Paul Winestock, Jr., Cr. WN-90-0454 (D. Md. October 5, 1993) (Sent. Tr. I).
United States v. Curry, 103 F.3d 121, 1996 WL 694441(4th Cir. 1996)(unpublished decision).
The PSI reveals that a major supplier of the group, Brian Benjamin, remained a Trinidadian fugitive and was not prosecuted in this case.
The agents asked for and received crack in exchange for the phones. Paul also provided heroin in several earlier transactions with the agents.
In addition to audio and videotapes, the government relied on testimony of eight cooperating witnesses who had been part of the group.
The distribution count was for a 53 gram sale of crack. The possession with intent count was for a day when the government alleged that Paul had received two kilos in the morning and five kilos in the afternoon. These deliveries were made in powder but the government presented evidence that the Woodridge group converted it to crack for resale. On appeal, Paul's unsuccessfully argued that this count was duplicitous because it contained two separate transactions. See United States v. Winestock, 110 F.3d 62 (4th Cir. 1997) (unpublished opinion).
Defense counsel also tried to mount a kind of sentencing entrapment case, referring to instances in which the undercover agents asked for narcotics which Paul didn't have and that the government refused Paul's offer to pay cash for cell phones or service they were offering. Sent. Tr. at 30-32. Given the ample evidence of Paul's involvement in narcotics trafficking and controlling precedent on this issue, the judge also rejected this efforts to reduce Paul's Offense Level. Sent. Tr. at 43.
At an earlier hearing, the government proved that much of the conduct on which Paul had been acquitted met the preponderance of the evidence standard. Sent. Tr. at 14.
Although a loaded pistol and $6000 was found at Paul's residence during the search at the end of the investigation, Judge Nickerson ruled that there was insufficient evidence that the gun was connected to the drugs in the case. This saved Paul from another two point increase in his Offense Level.
Defense counsel also unsuccessfully argued that some of the participants that the government alleged were part of the Woodridge Group were essentially "independent contractors" who should not be counted for purposes of determining the scope of the organization. Sent. Tr. at 9-21.
To some extent, Paul's arguments anticipated the Blakely and Booker decisions which forbid mandatory increases in a sentence based solely on judicial fact-finding. Paul said, "I was found guilty of two counts which . . . together only carry a mandatory minimum of 10 years." Sent. Tr. I at 46. Paul has filed numerous appeals and post trial motions to address these issues but the courts have turned back his attempts largely because these landmark cases have been held not to apply to cases that were final before the Supreme Court recognized these principles. See United States v. Winestock, 340 F.2d 200 (4th Cir. 2003).
Sent. Tr. at 47.
Sent. Tr. I at 44, 46.
Sent. Tr. I at 47.
Id.
Sent. Tr. at 48.
Id.
See U.S.S.G. ¤1B1.10© (1994).
The Fourth Circuit agreed that Judge Nickerson had no power to consider the downward departure motion at that hearing. See United States v. Winestock, 340 F.3d 200 (2003).
Prior to this case, he had worked a few low wage jobs for short periods of time, but had otherwise not had a legitimate career
August 16, 2005 letter to author at 1(copy on file with author).
Id. Paul also provided copies of some of his BOP Progress Reports which state that he is making "excellent progress" and that he has "consistently received good work evaluations and requires little supervision." (copies on file with author).
Id. See also Allison Klein, Slaying Surge in Pr. George's, Washington post, B7 (undated copy on file with author).
September 10, 2005 letter from Judge Nickerson to author at 1 (copy on file with author).
Richard Leiby, A Crack in the System, Washington Post, February 20, 1994 at F1. Derrick was also friendly with Len Bias' brother, Jay, who was shot to death in 1990. Id.
Cooperating witnesses also alleged that Derrick had delivered crack for Norman on several occasions and Derrick's voice was recorded on several calls with other members of the group.
Richard Leiby, A Crack in the System, Washington Post, February 20, 1994 at F1 (also quoting federal agents as laughing as they listened on cell phones they had provided to the participants, commenting that "These kids were clowns.").
The government agreed that Derrick was essentially a flunky and that he had only been involved in the Woodridge Group's drug activities for a short period of time. Id.
Unlike Paul's trial, Derrick's jury found him guilty of conspiracy as well as the substantive counts.
The probation officer wanted to add an additional two points "obstruction of justice" for Derrick's testimony at trial that he was not involved in the offense but the judge apparently rejected this argument.
United States v. Curry, 103 F.3d 121, 1996 WL 694441 at 4 (4th Cir. 1996)(unpublished decision).
Paul W. Valentine, Tribble Sentenced to 10 Years for Dealing Cocaine, Washington Post, October 16, 1993 (copy on file with author).
Richard Leiby, A Crack in the System, Wash. Post, February 20, 1994, at F1.
Undated Transcript of Dr. Curry's testimony before the United States Sentencing Commission (copy on file with author).
See September 10, 2005 letter from Judge Nickerson to author, at 2 (stating that "Derrick Curry probably would have wound up with a sentence in the eight to ten year range.").
Tracey A. Reeves, From Parting President, a Gift of Freedom; Pardon Brings New Life to Man Given 20-Year Mandatory Drug Term, Washington Post, January 27, 2001 at B1.