SOME CAUGHT IN CONSPIRACY TALK TO AVOID LONG SENTENCES

His voice quavering, notorious Billings drug enforcer Wayne Wells gave
the government what it needed during the 1995 trial of his best friend
and partner in crime.

Wells, a 6-foot-4-inch, 220-pound tough guy with a major drug habit
and a fearsome reputation as a debt collector, was facing 30 years in
a federal pen.

He was already 37 years old when the government offered him a deal --
tell investigators everything he knew about drug trafficking, and
other crimes and prosecutors would recommend a reduced sentence. He
would also be required to testify against his friend, Dean Thomas
LaFromboise.

So Wells reluctantly took the witness stand in April 1995, and
testified that LaFromboise had told him about a half pound of
methamphetamine that he had taken from Billings to Great Falls to
sell. He also testified that LaFromboise carried guns.

That's the way it is supposed to work. Drug dealers providing
information to get other thugs off the street. But even for the worst
of them, giving up others can be a wrenching decision.

When LaFromboise's attorney asked Wells why he decided to take the
stand, Wells hung his head.

" 'Cause there was no way of beating it, and I didn't want to die in
prison, which I probably might anyway,' " he replied.

Asked if he was afraid of what might happen in prison, Wells responded
bitterly.

"A snitch is a snitch; a rat is a rat, and I'm a rat."

He wasn't the only one in that vast meth conspiracy investigation who
decided to trade testimony for sentence reductions. Twelve people were
named in the indictment. LaFromboise and another defendant were the
only ones who refused a deal and went to trial. LaFromboise was
initially sentenced to 60 years in prison, though appeals have pared
it down to 30.

Wells got 30 years too. But under a provision called Rule 35, his
sentence was reduced to 13 years. Conspiracy ringleader Doug Ehrlich
also got a sentence reduction for his testimony.

Rule 35 motions, which have to be brought by the government within a
year of conviction, are among the few ways around a mandatory minimum
sentence. If a criminal has provided "substantial assistance" to the
government, the prosecutor requests the sentence reduction. The judge
decides whether to grant it and how much of a reduction is
appropriate.

A few first-time offenders qualify for a "safety valve" that allows
the judge to disregard mandatory minimums. To meet safety valve
requirements, a defendant must have virtually no criminal history.
Guns, violence or threats of violence must play no part in the
offense, and the defendant cannot have been a leader, organizer or
supervisor.

Most importantly, a defendant seeking safety-valve consideration must
tell the government everything he can about the crime he's charged
with and any others he may know about.

The problem with the safety valve option is that most people can't
qualify because their records have to be almost squeaky clean,
according to Yellowstone County Chief Public Defender Penny Strong.

"About one misdemeanor does it," she said. Strong said she is working
with a client who can't take advantage of the safety valve because he
has two DUIs on his record.

Talking to the government is the only way out for people sentenced
under minimum mandatory sentencing laws. In Fiscal 2001, 70 Montanans
convicted of federal felonies, including drug and gun violations,
received sentence reductions for providing "substantial assistance" to
the government. That's about 23 percent of the total.

It's an agonizing choice, defense attorneys say. But for many the
staggering penalties are the deciding factor.

"I don't push it," said Mark Werner, assistant federal defender for
the Billings office. "Besides being a legal choice, it's a moral
choice. I've heard good arguments on both sides."

But those who don't take the deal pay a heavy price, he
said.

"It could mean they do 15 years instead of seven," Werner
said.

Justin Dean Schwartz, 29, refused to talk and paid for it Sept. 12
when he was sentenced to 10-years on drug and gun charges. Two
co-defendants in the case, agreed to provide "substantial assistance"
and got much lower sentences.

"I've got to live with myself the rest of my life," Schwartz explained
in a post-sentencing interview.

Most who agree to cooperate never end up on the witness stand. In
Montana during Fiscal 2001, only 4.5 percent of felony drug defendants
went to trial. The rest accepted plea agreements.

When these witnesses do take the stand, one of the first lines of
defense is their reliability. Providing "substantial assistance" to
the government is a tricky business, veteran Billings defense attorney
Jay Lansing said.

"Does it mean telling the truth, or does it mean getting someone
convicted?" Lansing asked. "You have to have something to offer."

"The system gets turned on it's head," he continued. "The more that
you know, the more involvement you have, the more people you can tell
the government about, the bigger sentence reduction they can expect.
The less you know, the less chance of a reduction."

Montana's chief federal defender, Tony Gallagher of Great Falls,
agrees. Steep mandatory drug sentences turn people into snitches, he
said, and not always into truthful ones.

"If they don't have someone big to give up, then they just start
naming names," Gallagher said. "A lot of snitches will say anything to
avoid those minimum mandatories."

Prosecutors see it differently. Mandatory minimums are a powerful
incentive to cooperate with the government and a formidable
investigative tool, Montana U.S. Attorney Bill Mercer said.

"It would be difficult for agents to crack these state and federal
conspiracies without it," he said.

Prosecutors use the minimum-mandatory leverage to work their way up
the drug ladder and to learn about other crimes of which law
enforcement may be unaware, according to Mercer, and that's just what
Congress intended.

"Without a mechanism for law enforcement to acquire this kind of
information from defendants, we would be hamstrung in our attempts to
eradicate the criminal behavior known to the defendants, but otherwise
beyond our own knowledge," Mercer said.

Mercer said it is "somewhat unusual" to find a defendant who doesn't
have anything relevant to offer.

When Assistant U.S. Attorney Jim Seykora responds to defense attacks
on the reliability of these witnesses, he often tells juries "There
are no swans in a cesspool."

People who cooperate get sentencing breaks, he said. Those who promote
themselves as standup guys and refuse to talk about their crimes
aren't acting out of noble impulses, he said.

"Maybe they're just not taking responsibility for what they've done,"
Seykora said.
________________________________________________________________

SERIES INDEX:

Hard Time http://www.mapinc.org/drugnews/v03.n262.a04.html

No 2nd Chances With Drug Crimes http://www.mapinc.org/drugnews/v03.n250.a11.html

It's The Law http://www.mapinc.org/drugnews/v03.n258.a02.html

Prison Means Marking Time for Family, Too http://www.mapinc.org/drugnews/v03.n263.a05.html

Paying the Price http://www.mapinc.org/drugnews/v03.n265.a04.html

Partners in Crime http://www.mapinc.org/drugnews/v03.n270.a03.html

Some Caught in Conspiracy Talk to Avoid Long Sentences http://www.mapinc.org/drugnews/v03.n271.a02.html

Montana Project Tells Students About Drug Penalites http://www.mapinc.org/drugnews/v03.n277.a02.html

Sometimes, State Charges Can Be a Wake-Up Call http://www.mapinc.org/drugnews/v03.n277.a03.html

Editorial: U.S. Law Snares State Drug Dealers http://www.mapinc.org/drugnews/v03.n277.a04.html