Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider

As reported in this local article, headlined "In plea deal, most of marijuana caregiver's convictions to be dropped," there has been a notable (and disturbing?) development in a notable (and disturbing?) federal criminal case involving a Montana medical marijuana provider.  Here are the details:

In a highly unusual move, federal prosecutors have agreed to drop six of eight marijuana convictions for Christopher Williams in exchange for his agreeing to waive his right to appeal.  In addition, the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year.

The agreement was outlined under a settlement filed Tuesday in U.S. District Court.  In the document, signed by Williams, U.S. Assistant Attorney Joe Thaggard, and federal public defender Michael Donahoe, they note that this agreement “constitutes the final and best offer to resolve this matter.”

Williams, a medical marijuana caregiver, was convicted by a 12-member jury in September after a four-day trial.  He was facing a minimum mandatory sentence of between 85 and 92 years, due in part to four counts that involved possessing a firearm in furtherance of a drug trafficking crime.  Sentences for those counts, by law, had to run consecutively.

Immediately after his conviction, Thaggard had offered to drop some of the charges, but they still involved a 10-year mandatory minimum sentence.  Williams rejected the offer, saying he was willing to spend the rest of his life in prison to fight what he believed were violations of his constitutional rights.

Under the newest deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime.  His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand.

He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years — and a maximum of life — for the firearm-related charge.

Kari Boiter, a friend of Williams, reported late Tuesday that she had talked to him via a phone call.  He was incarcerated at the time at the Missoula County Detention Facility. Boiter says Williams told her it wasn’t easy for him to give up his constitutional fight, but as he navigated the complex federal penal system, it became clear that punishment was the only thing that was guaranteed.

“With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer,” Williams said in a statement released by Boiter.  “If Judge Christensen shows mercy and limits my sentence to the five year mandatory minimum, I could be present at my 16-year-old son’s college graduation.  This would most likely be impossible had I rejected the latest compromise.”

Williams was a partner in Montana Cannabis, which operated distribution centers in Helena, Billings, Miles City and Missoula, and had a large marijuana greenhouse west of Helena on Highway 12.  The four partners — Williams, Chris Lindsey, Thomas Daubert and Richard Flor — said they tried to set the “gold standard” for medical marijuana businesses after voters overwhelmingly passed legislation in 2004 permitting caregivers to distribute marijuana to people with physical ailments.

But under a federal crackdown in March 2011, Montana Cannabis was one of about 25 medical marijuana businesses that were raided, since marijuana is still considered a Schedule 1 narcotic under federal laws. Williams is the only person in Montana to take his case all the way to trial.

Daubert, Lindsey and Flor all pleaded guilty to various marijuana possession and distribution charges. Daubert received a sentence of five years on probation; Lindsey is expected to be sentenced Jan. 4 and prosecutors have agreed to seek a sentence similar to Daubert’s based upon Lindsey’s health problems and limited involvement in Montana Cannabis. Flor, who was sentenced to 10 years in prison, died from health-related complications while incarcerated....

It’s unknown whether Williams’ sentencing hearing, slated for Jan. 4 in Missoula, will still take place on that date.

As a matter of equitable substantive sentencing justice, I am very pleased to learn that Chris Williams is no longer facing a federal mandatory sentence of essentially LWOP for distrubuting marijuana in compliance with Montana law. But as a matter of constitutional law and federal criminal procedure, I find this new novel "sentencing settlement" disturbing from various perspectives. Let me explain:

Start with the government actors: though federal prosecutors have broad charging and bargaining discretion, what gives them authority to drop 75% of presumptively lawful convictions after a presumptive lawful jury trial?  Unless and until prosecutors articulate a constitutional or legal reason for dropping thse convictions, this decision appears to be a form of "prosecution nullification" that strikes me even more lawless than "jury nullification."  Prosecutors frequently contest and complain about the power of juries to nullify a prosecutor's criminal charges based on equitable rather than legal claims; here is appears that federal prosecutors are deciding to nullify a jury's criminal convictions based on equitable rather than legal claims.  

Even more worrisome, federal prosecutors in this case are going to nullify 75% of presumptively lawful convictions after a presumptive lawful jury trial in order to secure a deal to avoid any appellate scrutiny of the (also suspect?) convictions to be preserved.  If federal prosecutors believe there is a sound legal or equitable basis for dropping some of these convictions, why not just drop them without demanding anything in return from the defendant rather than requiring him to give up his statutory rights to appeal his other convictions and sentence?  Prosecutors here are not merely nullifying many jury convictions, but they are doing so only after essentially blackmailing the defendant to give up his rights to contest his other convictions on appeal.

Turning to the defense side:  though I completely understand why Chris Williams (especially after a few months in federal lock-up) decided to give up right to an uncertain appeal in order to avoid the prospect of a certain mandatory LWOP federal sentence, I am not sure how his attorneys can feel fully comfortable representing this deal as a knowing and voluntary settlement.  Based on the comments from the defendant quoted above, it seems plain to me that Chris Williams was essentially coerced by the threat of an extreme (and I think unconstitutional) sentence into giving up his appeal rights.  The jury convictions and the extreme mandatory sentencing terms here functioned in this case as a kind of legal sword of Damocles hanging over the defendant's head; Williams appears to have decided to accept this "sentencing settlement" waiving appeal rights only because prosecutors kept swinging this sword past his neck.

Especially because I want Chris Williams to be able to go to his 16-year-old son’s college graduation, I do not want to prevent him from getting the obvious benefit of this deal.  But because I also want Chris Williams to be able to pursue on appeal all his constitutional claims on all his convictions and sentence, I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy.