U.S. v. Wehrbein, 4:98CR3050.
| Decision Date | 31 August 1999 |
| Docket Number | No. 4:98CR3050.,4:98CR3050. |
| Citation | 61 F.Supp.2d 958 |
| Parties | UNITED STATES of America, Plaintiff, v. Boyd L. WEHRBEIN, Jr., Defendant. |
| Court | U.S. District Court — District of Nebraska |
William W. Mickle, II, Assistant United States Attorney, Omaha, NE, for plaintiff.
John C. Vanderslice, Federal Public Defender's Office, Lincoln, NE, for defendant.
The State of Nebraska and the United States of America prosecuted Boyd L. Wehrbein, Jr., (Wehrbein) twice for very similar conduct that arose out of the same event.1 As a result, the defendant served time in a state prison. After he was released from that prison, the federal government prosecuted the defendant again. The case was referred to the United States Attorney while the defendant was in state custody. Allowing more than a year to pass, the government waited until the defendant left the state prison to indict him on the federal charges.
The defendant's child, Christopher, who has a serious emotional disorder, will be significantly harmed if his father is imprisoned a second time. The boy has just begun to overcome the disastrous impact his parents' neglect and the first imprisonment has had on the child. The presence of his father is critical to the boy's continued improvement.
Wehrbein requests that I depart from the Guidelines. I will grant his motion for departure under U.S.S.G. § 5K2.0 (p.s.). My reasons for this ruling are set forth below.
In the Fall of 1996, Wehrbein, then age 32, and his wife, Christine, then age 27, had hit bottom. They were both addicted to methamphetamine, marijuana and alcohol. Their addiction was wildly out of control.
They had three children whom they neglected badly. The children's names are: Boyd Lee Wehrbein, III, now age 12, Christopher S. Wehrbein, now age 11, and Jessica J. Wehrbein, now age 9. Everyone agrees that all three children suffered great emotional trauma at the hands of their parents. For example, when the defendant and his wife wanted to use their drugs, the couple would lock the children (then ages 9, 8 and 6) out of the home.
On October 17, 1996, after a search warrant was executed at the defendant's home in Beatrice, Nebraska, officers located a pint can of acetone and two gallon cans of naphtha. In the living room of the residence, officers located a lock box with razor blades and syringes and various papers entitled "Boyd's notes," which appeared to be the recipe for making methamphetamine. Officers also found a bottle of iodine crystals, a ziplock baggie of iodine crystals, a quart bottle of acid, a quart can of acetone, a cardboard box with baggies containing red phosphorus, two 1,000 milliliter glass beakers, a 2,000 milliliter beaker and two gallon jugs containing an unknown liquid. In the kitchen of the residence, officers located approximately 64 ounces of marijuana, three gallon-sized jugs of liquid labeled "shit," and two jars of red phosphorus.
Also found in the residence was a Stephens model 520 shotgun with a barrel of less than 18 inches, a Sears model 130 × 30 rifle, a H & R 410 shotgun, a Remington model 522 22-caliber semi-automatic rifle, a Mossburg model 512 gauge shotgun, a Whitney 22 caliber revolver and a Smith and Wesson 357 magnum revolver. The short-barreled shotgun had been cleaned and appeared to be in working condition when it was discovered.
The officers also found Christine and the three children in the home. The house was filthy. The children's clothes were soiled to the point that they had to be destroyed rather than cleaned.
As a result of the search, Wehrbein and his wife were prosecuted in Nebraska state court. Although the record is not entirely clear, it appears that Christine was prosecuted on a low-grade marijuana charge and she was placed on probation. She did little or no time in jail.
The defendant, however, was charged with and convicted of more serious crimes. He was charged with unlawful manufacture and distribution of a controlled substance (Count I), possession of marijuana, more than one ounce but less than one pound (Count II), possession of a short shotgun, amended to attempted possession of a short shotgun (Count III), and child abuse (Counts IV - VI). Pursuant to a plea agreement, Count I, pertaining to the unlawful manufacture and distribution of a controlled substance, was dismissed. Wehrbein pled guilty to the remaining five counts. On January 24, 1997, he was sentenced to the Nebraska Correctional Center. He received a maximum sentence of 31 months in prison. (Presentence Report (PSR) ¶ 55.) He was discharged from the Nebraska prison on March 2, 1998, after serving about 13 months.2 (PSR ¶ 2.)
After Wehrbein and Christine were arrested, Nebraska Child Protective Service case managers took the children and placed them with relatives. The children were split up. Christopher resided with his paternal grandfather, Boyd Wehrbein, Sr., in Nebraska.3 The other two children resided with their maternal grandparents in California. These arrangements lasted for approximately one year.
Insofar as Christopher was concerned, he was placed in Nebraska, and separated from his siblings in California, so he could receive more individual attention in school and be closer to his parents. There were two concerns. First, it was feared that Christopher suffered from attention deficit hyperactivity disorder and it was thought that a small-town school might be able to provide a better environment for the boy. In addition, Christopher also expressed a very strong desire to be close to his parents. As will be seen later, Christopher is particularly dependent upon his father.
Thankfully, the State of Nebraska intervened to try to rehabilitate the family. This began when both Wehrbein and his wife Christine were interviewed by Nancy Probst in January of 1997. Ms. Probst is employed at the Blue Valley Mental Health Center in Beatrice, Nebraska. She is a certified alcohol and drug abuse counselor, which is the highest ranking for such a speciality in the State of Nebraska. In addition, she supervises several counselors and the mental health center. Probst interviewed the defendant and his wife pursuant to an order from a state court judge who was handling the child welfare case.
Insofar as Christine was concerned, Probst determined that Christine was in need of extensive treatment. Christine was amenable to treatment. She told Probst that she would do anything she could to put her family back together. The evidence indicates that she has done this.
Shortly after Probst interviewed Christine, she also interviewed the defendant. He was "very arrogant, very cocky, had no remorse." (Ex. 211 at 20.) Wehrbein told Probst that "he didn't think he needed to be there and it was a waste of time." (Id.) At that time, Probst thought there was little chance that the defendant would change.
Based upon Probst's recommendations, Christine Wehrbein agreed to enter the inpatient drug treatment program at the Hastings Regional Center in Hastings, Nebraska. She went to that facility and stayed there for approximately 40 days. Prior to her going to the Hastings Regional Center, she was living in a safehouse for the homeless.
After successfully completing her treatment at the Regional Center, Christine contacted Probst for aftercare services. By that time, Christine was residing in a motel in Beatrice, Nebraska. Because Christine did not have transportation, she walked to the meetings. Probst was Christine's primary counselor for the aftercare program. Christine received intensive aftercare treatment from April of 1997 through December of 1997.
When Probst first met with Christine, she was homeless, jobless, her children had been taken from her and her addiction was uncontrolled. Throughout the course of the next year, Christine successfully sought treatment for her drug and alcohol addiction, gained employment (at a Burger King) and rented a home. By the end of the year, she also had custody of her daughter. She later obtained custody of her two sons.
Wehrbein got out of prison March 2, 1998. Probst saw Christine on April 14, 1998, after Wehrbein had been released from prison. Probst characterized this as an "emergency session" because Christine was so frustrated. Although Wehrbein had obtained a high school diploma while in prison, and had experience as a welder, he had not yet found a job. Moreover, the children were having behavioral problems, and the State of California was demanding that she pay back monies that she had received on behalf of the children. Even though very frustrated, Christine reported that both she and the defendant were sober and both were attending AA or NA meetings. She and Probst made plans about how to deal with Christine's concerns.
Thereafter, the defendant found good work as a welder. His employer told the United States probation officer handling this case that the defendant is a (PSR ¶ 90.)
It now seemed that the defendant and his family had a chance to begin life anew. Christine had received extensive drug treatment, and she had found a home and a job. Wehrbein had done his prison time, earned his high school diploma, and was gainfully employed with a good job. Both parents were attending "12-step" meetings. Christine had Probst, the counselor, to lean on. The children had been reunited with their parents.
Unknown to the Wehrbein family, the authorities were not satisfied with the 13 months in prison that Wehrbein had served. Accordingly, law enforcement authorities referred the case to the United States Attorney for the District of Nebraska for...
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