United States v. Dixon

• Decision Date: 13 June 2016
• Docket Number: CRIMINAL ACTION NO. 2:14-cr-00236
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Marlon Dewayne DIXON, Defendant.

191 F.Supp.3d 603

UNITED STATES of America, Plaintiff,
v.
Marlon Dewayne DIXON, Defendant.

CRIMINAL ACTION NO. 2:14-cr-00236

United States District Court, S.D. West Virginia, Charleston Division .

Signed June 13, 2016

191 F.Supp.3d 605

Joshua C. Hanks, US Attorney's Office, Charleston, WV, for Plaintiff.

Claire G. Cardwell, Richmond, VA, David O. Schles, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

Before the Court is the determination of whether there is a factual basis for Defendant's plea. For the reasons discussed herein, the Court FINDS that there is a factual basis for the plea.

I. Background

This case arises out of Defendant's killing of Branda Mae Delight Basham—an informant for the Metropolitan Drug Enforcement Network Team ("MDENT"). The pertinent facts are as follows.

A. The Relevant Policies and Procedures of Local and Federal Authorities

"MDENT ... is a multi-jurisdictional task force with a primary mission of enforcing ... state and federal drug laws." (ECF No. 63, Ex. A ¶ 12.) MDENT "is comprised of personnel from police departments, sheriff's departments, and federal agencies." (Id. ) "A significant number of MDENT cases are prosecuted in the United States District Court for the Southern District of West Virginia through" the United States Attorney's Office (the "USAO"). (Id. ¶ 13.) "MDENT works closely with the USAO nearly every day in order to focus its resources on cases that meet federal initiatives and prosecution guidelines." (Id. ) "Any case falling within a federal initiative or meeting USAO guidelines is presented by the relevant case agent to" an Assistant United States Attorney ("AUSA") "for federal prosecution." (Id. )

"In August 2013, the Department of Justice announced the ‘Smart on Crime’ initiative." (Id. ¶ 20.) "This initiative directed U.S. Attorney Offices to focus resources on the most significant cases ... includ[ing] violent and recidivist or career offenders ...." (Id. )

"Over the past several years, in response to the epidemic of opioid abuse, the USAO, MDENT," and other federal and local agencies in this District "have collaborated and focused collective resources on cases involving opioid pharmaceuticals and heroin." (Id. ¶ 21.) "In May 2014, USAO prosecution guidelines prioritized opioid pharmaceutical and heroin cases to the near exclusion of cases involving other types of controlled substances ...." (Id. )

"In 2013, the USAO along with local officials and community leaders launched the ‘West Side Drug Market Initiative’

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...." (Id. ¶ 19.) As part of this initiative, "cases from the West Side of Charleston involving middle and high-level drug dealers and those with significant or violent criminal records would be prosecuted federally." (Id. ) "Federal and local law enforcement (including MDENT) received training on the criteria to be used in identifying cases that would be adopted for federal prosecution ...." (Id. )

Additionally, "[s]tarting in 2013, MDENT along with federal agencies and city police joined the USAO in targeting certain types of drug crimes occurring on the West Side of Charleston." (Id. ¶ 14.) "As a result, MDENT submits nearly all West Side cases to the USAO that involve heroin and opioid pharmaceuticals, along with any other drug cases ... that were perpetrated by individuals having significant criminal records." (Id. ) "This practice was in full effect during May 2014 ...." (Id. )

"Any case referred to the USAO for prosecution is reviewed by an [AUSA]." (Id. ¶ 15.) "Cases prosecuted by the USAO necessarily involve communication between witnesses and the AUSA handling the prosecution." (Id. ) "This communication includes interviews of the witnesses, preparation for and testimony before a federal grand jury, as well as preparation for and testimony before a federal judge ...." (Id. ) "Cases brought by the USAO are ultimately brought before a federal judge, with witness testimony presented during a trial, and if a conviction is obtained, at sentencing ...."¹ (Id. ¶ 16.)

B. Defendant's Prior Convictions

Defendant has three pertinent prior convictions. First, on July 19, 1999, a court in this District sentenced Defendant to 63 months of imprisonment and five years of supervised release for possession with intent to distribute cocaine base. (PSR ¶ 76.) Second, on April 11, 2006, a court in this District sentenced Defendant to 41 months of imprisonment and six years of supervised release for possession with intent to distribute cocaine. (Id. ¶ 80.) Finally, on March 23, 2007, Defendant was sentenced in Kanawha County Circuit Court to two to ten years of imprisonment—to run concurrently with Defendant's April 11, 2006 federal sentence—for the offense of malicious wounding. (Id. ¶ 79.)

C. The May 2014 Controlled Buys and Investigation

"On May 8, 16, and 20, 2014, [Defendant] distributed heroin to [Basham] who was working as an informant for [MDENT]." (ECF No. 63, Ex. A ¶ 1.) "The transactions were conducted under the supervision of MDENT and occurred on the West Side of Charleston, ... West Virginia ...." (Id. )

On May 19, 2014, Basham identified Defendant as the seller. (Id. ¶ 17.) "At that point, MDENT began preparing to present the case to the [USAO] for federal prosecution based on the detectives' knowledge of USAO prosecution guidelines and priorities." (Id. ) In particular, MDENT detectives knew the case included the following "factors prioritized by the USAO when considering whether to adopt drug cases for" federal prosecution: (1) Defendant's "past federal convictions and criminal record;" (2) "the location of the controlled transactions" on the West Side of Charleston, West Virginia; and (3) "the fact that the case involved heroin." (Id. ) "As a result ..., MDENT detectives

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determined to present the case to the United States Attorney's Office for federal prosecution." (Id. ) "Had [Defendant] not [killed] Basham, MDENT officers would have continued to communicate with Basham and relay those communications to the AUSA ...." (Id. ) Additionally, once the case was adopted for federal prosecution, "Basham would have communicated with the USAO and an AUSA." (Id. ¶ 23.)

D. The Instant Offense and Prosecution

On May 21, 2014, MDENT executed a search warrant at Defendant's residence. (Id. ¶ 2.) When Defendant returned to his residence "and observed the service copy of the warrant," Defendant "suspected that Basham had been working for police" during her recent heroin purchases. (Id. ) On May 22, 2014, Defendant spoke with an MDENT detective, learned "that MDENT had made controlled purchases of heroin from him," (id. ¶ 3), and, "when the detective told him that, [Defendant] knew he ‘was gonna kill,’ " (PSR ¶ 44). Defendant told the detective "that he would surrender to police after the Memorial Day holiday weekend," but Defendant "did not surrender until July 17, 2014." (ECF No. 63, Ex. A ¶ 3.)

"Sometime after midnight on July 12, 2014, [Defendant] convinced Basham to meet him in a secluded stretch of railroad tracks ... on the West Side of Charleston, ... West Virginia." (Id. ¶ 4.) Defendant provided a statement to Charleston Police Department detectives in which he said that he requested the meeting to confront Basham about being a confidential informant. (PSR ¶ 46. See generally id. ¶ 16 n.1 (stating that Defendant provided "a Mirandized statement to a detective after [his] arrest on July 17, 2014").) Defendant noted that, at the meeting, Basham admitted to "wearing a wire" and that she made controlled buys from Defendant. (Id. ¶ 46.) Defendant stated that "as soon as [Basham] mentioned an MDENT detective's name that he knew ... Basham was responsible for ‘setting him up,’ and [Defendant] knew he was going to kill her." (Id. ) Defendant stated that he then displayed a firearm and "Basham pled for her life." (Id. ¶ 47.) According to Defendant, Basham "attempted to flee and he shot her in the back." (Id. ) Defendant stated that Basham then "fell to the ground and asked [Defendant] to call an ambulance" and again "pleaded with [Defendant] for her life." (Id. ) Defendant "admitted to shooting ... Basham two more times, the last of which was at close range and in the face." (Id. ; cf. id. ¶ 21 (providing that a resident in the area of the killing gave a statement to officers that they heard a woman scream "Please, no, no!" and "then heard a firearm discharge and heard a second discharge from a firearm minutes later"); id. ("Two other witnesses told officers they heard three to four gunshots ... near the scene where the body had been discovered.").)

"On July 14, 2014, an autopsy and examination was completed on ... Basham." (Id. ¶ 33.) "The examination revealed that ... Basham had sustained gunshot wounds to the right cheek, the left chest, and the right anteroinferior chest." (Id. ) "The cause of death was determined to be homicide." (Id. )

The parties stipulated to the following regarding Defendant's intent...