UNITED STATES OF AMERICA et al v. MICROSOFT CORPORATION

Filing 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v DARRYL M. WOODFORK : : : : : Criminal No. 06-182(JR) Under Seal

DEFENDANT'S MEMORANDUM IN AID OF SENTENCING The defendant, Darryl Woodfork, through undersigned counsel, and consistent with the Government's Motion and Memorandum In Support of Motion For Sentencing Departure(Government's Memorandum), urges the Court to make findings of fact pursuant to U.S.S.G. 5K1.1 and 18 U.S.C. Section 3353 (e) that he has substantially assisted law enforcement authorities in the investigation and prosecution of criminal offenses; and that the Court grant a substantial downward departure from the sentence otherwise prescribed in the Guidelines and by statute. The defendant respectfully requests that that he be sentenced to a period of time not greater than 20 years imprisonment. I. The Defendant Substantially Assisted Law Enforcement Authorities (U.S.S.G. Section 5K1.1 and 18 U.S.C. Section 3553 (e)). Mr. Woodfork played a significant role in assisting local law enforcement in their prosecution of other participants in the Taft Terrace conspiracy, as well as in the investigation of other criminal activity within and beyond the District of Columbia. As acknowledged by the prosecution in its Memorandum, the defendant's cooperation effectively forced codefendant Anthony Nelson to also enter into a cooperation agreement with the government rather than

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contest the indictment. During multiple debriefings in advance of his plea, Darryl pinpointed the precise role that Nelson played in the conspiracy and his role as a shooter in one of the two indicted VICAR homicides. In addition, he confirmed for the government that Nelson had committed a second homicide that was not included in the indictment, the murder of Jerry Swales. Darryl's detailed information laid a strong foundation for the government to prosecute and confront Nelson with this additional murder, to which Nelson ultimately entered a plea of guilty before this Court. Darryl advised the agents who debriefed him that Nelson had boasted of the murder to Darryl and others, and had described to Darryl in detail precisely how and why he had shot Swales multiple times. Darryl was also able to put law enforcement in a position to prove that the ballistics evidence found at the scene of Jerry Swales' homicide matched up with Nelson's firearm. In an act that confirmed his genuine acceptance of responsibility and his willingness to assist the government with no holds barred, Darryl agreed to direct and accompany the officers to a location in Virginia where Nelson had practiced firing the same weapon that he had used to commit the Swales murder. Darryl successfully did so, resulting in the officers seizing critical ballistics evidence that confirmed that Nelson was the killer. As noted by the government, Darryl's plea formed one of the three legs of a triad that led all of the conspirators in the Taft Terrace investigation to ultimately enter guilty pleas without going to trial. The details he provided also served to keep the other coconspirators honest in their dealings with the government, as at least some of the others had sought to minimize their roles in various crimes, including their possession and storing of weapons in the aftermath of acts of violence. It should also be added that while Vernon McKenzie is characterized as the "first domino," Darryl had provided information about Damon and Vernon McKenzie's drugtrafficking activity and possession of sophisiticated firearms to MPD officers even before his

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prosecution in the instant case was initiated. As a result, prior to this investigation, police obtained a search warrant that led to the search of Damon's residence during which 8 firearms were seized, This is not insignificant because from that point forward Vernon and Damon regarded Darryl as a snitch, and were motivated to turn the tables on Darryl by providing all the information they could about Taft Terrace to the government. Their putting the word out and labeling Darryl as a "snitch," also created an atmosphere that motivated others in the Taft group to enter early pleas, figuring that Darryl was cooperating even before he actually was in this case. It has also unfortunately, and to Darryl's peril, created a situation wherein Darryl is labeled as "hot" by anyone within and without the corrections system who has communicated with the McKenzies or with the Taft coconspirators. Indeed on several occasions, including recently, persons apparently affiliated with the McKenzies have communicated threats to Darryl's family members, making it clear that Darryl is a target for violent retribution. The government also accurately notes the substantial assistance that Darryl provided in candidly acknowledging his role in multiple other incidents that were not included in the Taft indictments.: " In expressing his willingness to accept responsibility for those crimes, Woodfork not only brought to an end work on a superceding indictment, but also allowed the government to close numerous open crimes which might never have been charged, much less closed. " Government Memorandum at 34. (emphasis added). The government also accurately recounts in detail in its Memorandum how Darryl successfully and substantially contributed to specific prosecutions, including those of Erick McNair, Dominick Flowers, Bertram Alston, Corey Wade, and Preston Jackson. In addition, Darryl should be credited for detailing the methodologies of gun dealers in North Carolina and Maryland who readily accept sales to straw buyers, with the weapons often ending up in the District of Columbia. It is counsel's understanding that this

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information has lead to ongoing investigations, and has helped to halt the pipeline of weapons from these states into the D.C. metropolitan area.

\II. Darryl's dimished mental capacity warrants a downward departure pursuant to USSG Sect. 5K2.13, and together with his psycho-social history also constitute sentencing factors that warrant a "variance" pursuant to 18 U.S.C. 3533(a).1 The defendant should be granted a downward departure pursuant to U.S.S.G. Sect. 5K2.13. It is clear that the defendant was suffering from a significantly reduced mental capacity due to his borderline to mildly retarded intellectually functioning and Attention Deficit Disorder that contributed to his commission of the instant offenses at the time that he committed them. U.S. v. Leandre, 132 F.3d 796 (D.C. Cir. 1998). Darryl's mental health deficiencies since his early adolescence have been well documented, as testified to by Dr. Hans Solvog at the mitigation hearing conducted on May 22. 2008. As Dr. Solvog noted in his report, See Defendant's Submissions In Support of Mitigation Hearing, Exh #1, and during his testimony, North Carolina school records indicated that Darryl, at age14, received a full-scale I.Q. score of 71 and a verbal score of 62 after undergoing a psychological evaluation from a licensed clinical psychologist. The psychologist noted, "...his Verbal Scale IQ falls in the mild range of developmental disabilities." Darryl also received an AAMD Adaptive Behavior Scale evaluation as an addendum to the previous psychological evaluation. That psychologist concluded that Darryl's level of adaptive behavior was consistent with his borderline to mildly retarded intellectual functioning; his levels of adaptive behavior were quite low, when compared with
There was extensive testimony presented by three distinguished mental health and mitigation professionals at the mitigation hearing on May 22, 2008. Each also submitted a report detailing his or her findings based upon recent mental health and neurological and neuropsychological testing of Darryl, or in the case of Dr. Solvog, his investigation of historical mitigation factors. See Defendant's Submissions in Support of Mitigation Testimony. ("Submissions"). Dr. Solvog's report also included original source documents that memorialized Darryl's psychological testing and social history, and were included for the Court's review. As such, this memorandum will
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regular reference groups, suggesting the presence of marked behavioral deficits. Subsequent to the above evaluations, Darryl was placed in the Educationally Mentally Handicapped Exceptional Children's Program on January 30, 1992, while in the eighth grade. Subsequent testing and evaluations throughout his teenage years were consistent with the original diagnoses and also pointed up severe learning deficiencies. For example, in November 1993, Darryl participated in another mental health evaluation. He reported hurt and anger regarding his biological father's lack of concern, contact, and financial support. The evaluator noted that Darryl had scored in the borderline to mild mental retardation range of intelligence in recent psychological testing. Shortly thereafter, Darryl and his mother attended a hearing in application for Social Security Disability benefits on the basis that Darryl was incapacitated due to his severe learning disability. Darryl won judgment in the case and was awarded back benefits dating from the original application in December 1992. In January 1994, at age 16, Darryl was admitted to outpatient counseling at the Halifax County Mental Health Center and continued counseling through January 1996. While Darryl was in the tenth grade and 17 years old, he was administered the Woodcock-Johnson and WAISR evaluations for academic performance by a licensed school psychologist. She noted severe deficits, with Darryl scoring between the second and fifth grades in various academic subjects, and that he suffered from a Disorder of Written Language. The final report and recommendations, from the above evaluation, dated March 6, 1995, determined that he required small group instruction due to low frustration level and limited concentration and that he had severe deficits in reading, math, written language, and knowledge. Dr. Victoria Starbuck, a licensed neuropsychologist, twice conducted a battery of neuropsychological tests on Darryl, most recently in November 2007. Her findings in the areas

seek only to summarize rather than repeat the findings of each expert.

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of Intelligence and Achievement were consistent with the defendant's earlier testing. Specifically, Darryl tested in the Borderline Range for Full-Scale IQ and Verbal IQ (79 and 75), indicating that he is "mentally impaired." On measures of word knowledge and auditory attention span, as well as in the areas of verbal comprehension and working memory index, he performed at the 5th and 4th percentiles. Based on Darryl's results on the Conners' Continuous Performance Test II, she concluded that the chances are 97 out of 100 that a significant attention problem exists. His results on the Halsted Impairment Index suggested the likelihood of brain dysfunction, As she testified, according to the results achieved on a series of tests designed to evaluate Central Executive Functioning and Mental Flexibility, known as the DKEFS battery, he performed in the impaired range, with some scores as low as the 1st percentile. In her report, she concluded, " Mr. Woodfork's performance on several measures of mental flexibility and central executive functions suggests difficulty in planning, organization, initiation and disinhibition of behavior...These tendencies, combined with his apparent attentional deficit may make it difficult for him to control or inhibit his behavior, particularly under times of stress. " Submissions, Exh. # 3 at 5. During her testimony, she reiterated that Darryl's ADD and Central Executive deficits made it difficult for him to inhibit his responses in stressful situations, and that it was likely that he suffered from a frontal lobe dysfunction. Dr. Richard Restak, a world reknowned neurologist and neuropsychiatrist conducted a neuropsychiatric and neurological examination of Darryl at the Correctional Treatment Facility on December 28, 2007. His examination and review confirmed Dr. Starbuck's findings of frontal lobe dysfunction and Attention Deficit Disorder (A.D.D.), as well as their effect on Darryl's behavior: "Overall the picture is that of an early onset of Attention Deficit Disorder with some clear indicators of Frontal Lobe Impairment. These diagnoses bear special relevance to the actions that led to his incarceration because they affect impulse control, judgment and executive 6

function." Submissions Exh. #5 at 4. In response to direct questioning by the Court, Dr. Restak testified that these central function disabilities were modifiable to an extent with rehabilitation. He further testified that effective medications and treatments were now available for A.D.D., and that if medically administered to Darryl during his period of incarceration, such treatment would likely result in a significant improvement in his ability to function appropriately. The dysfunctionality of Darryl's family also contributed to his deficiencies. While pregnant with Darryl, his mother suffered a brain hemorrhage that impacted on Darryl's early development. His father not only abused his wife during the pregnancy, but also abandoned the family around the time of Darryl's birth. His older brother was a drug-abuser who introduced Darryl to alcohol and other substances when Darryl was only about 10 years old, resulting in several instances where Darryl became unconscious. Efforts to remove Maurice from the family household were unsuccessful. Several years later, his bother Maurice contacted HIV-AIDS. Darryl as a teenager and young adult still remained close to Maurice and assisted in his brother's care when Maurice became critically ill, and eventually died. The other significant male figure in Darryl's life, an uncle who Darryl spent a fair amount of time with, died shortly thereafter.

III. Recidivism and Rehabilitation A number of studies have examined the recidivism rate of released "lifers", particularly those imprisoned for homicide. Generally, these have found that lifers (those who serve lengthy sentences before release) have very low rates of recidivism, including for violent crimes. The Meaning of "Life": Long Prison Sentences In Context, The Sentencing Project, Washington, D.C. May 2004, at 23. For example, in Michigan, of 175 persons convicted of murder and paroled during a 24-year period, none committed another murder and only four returned to

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prison for other offenses. Id. In Canada, between 1959-1967, of 32 convicted murderers who were released, only one re-offended (not for a homicide). Id. Lifers are less than one-third as likely as all released offenders to be rearrested within three years of release from prison. In fact, four of every five lifers are not rearrested. Of the lifers released in 1994, only 20% were rearrested compared to an overall rearrest rate of 67.5% for all offenders. Id. at 24, citing Recidivism of Prisoners Released in 1994, Washington, D. C.: U.S. Department of Justice, Bureau of Justice Statistics, 2002, Table 10. In addition. lifers convicted of violent offenses, and then paroled after serving lengthy sentences, are no more likely to be rearrested for a violent offense than is a property offender or a drug offender. Id. Rehabilitation programs in prison, especially those that include academic and vocational skills training, cognitive skill programs focusing on goal setting and problem solving and drug treatment, have proven effective in reducing recidivism. Preparing lifers and those sentenced to lengthy terms of incarceration for release through targeted programming can result in significant public safety benefits. Id. at 27, analyzing "Recidivism: The Effect of Incarceration and Length of Time Served," Washington State Institute for Public Policy, September 1993. As stated in the Legal Resource Guide To The Bureau of Prisons, U.S. Department of Justice, 2008, at 19, "The BOP is committed to providing inmates with opportunities to gain skills needed for successful reentry to the community within a secure environment." With few exceptions, inmates lacking either a high school diploma or a GED credential are required to enroll in an adult literacy program for a minimum of 24 hours. A variety of programs for selfimprovement, including stress reduction, anger management, parenting skills and interpersonal development are offered. College and vocational training courses are also offered. Every institution maintains a Health Services Unit to provide medical, dental and mental health care. Each inmate is assigned a medical "CARE Level" based upon his or her medical background as 8

described in the PSI Report and other available information. Regardless of the CARE level of the inmate, each is assigned to a Primary Care Provider Team designed to function in the same fashion as a community medical team practice. Prescribed medications are given free of charge, in accordance with a National Formulary. Id at 19-20, 24-25, 27. Inmates are offered a full range of mental health services, through staff psychologists and psychiatrists, as well as through community mental health specialists. Id. at 28. IV. FAMILY AND COMMUNITY Darryl is married to Akaia Schools Woodfork, and they have three children together: Mathew, age 4, and twins Mason and Julius, age 3. Akaia Schools works as a medical assistant. Darryl helped care for the children when he was in the community. His wife and children have visited him regularly while he has been detained at CTF. The children clearly display their affection for their father, and express their desire to see him whenever possible. It is Darryl's deepest wish and strongest goal to maintain communication with his sons as they grow up, and to one day reunite with them. Darryl also maintains strong bonds with his mother and adult sister who communicate with him regularly and visit him at CTF. V. ANALYSIS AND CONCLUSION If the Court grants the government's motion for sentencing departure pursuant to 18 USC 3553(e) and USSG 5K2.0, the court will have wide discretion in determining a sentence sufficient but not longer that necessary to meet the purposes of 18 USC 3553(a). Darryl commited two homicides, the most aggregious of crimes. He continues to express remorse for his actions, has apologized to the victims' family members at the Victims' Hearing, and accepts the inevitability of a lengthy prison sentence as retribution. He has also displayed his acceptance in a very meaningful fashion by assisting the government in the resolution of the Taft Street case, and in also helping to solve another homicide to which Anthony Nelson has since plead guilty. 9

The government also credits Mr. Woodfork for helping it bring to justice numerous other persons who participated in violent and firearms related crimes that the government otherwise would not have been able to prosecute. It is clear that Darryl's assistance was extensive. Darryl's cooperation has also placed him at significant risk of physical harm. In assessing the appropriate extent of the departure based upon substantial assistance, the Court should also take into consideration that Darryl has been labeled a cooperator or snitch for several years now. His family members have been approached, and advised by persons in the community aligned with Taft Terrace and related offenders that they hold Darryl responsible for their legal troubles, and intend to harm him when the opportunity arises. Darryl has also been advised by inmates that others know he is "hot", and that inmates related to the victims and to the Taft crew mean to do him harm while in the prison system. An additional departure is warranted, pursuant to U.S.S.G. 5K2.13, as the record is unambiguous that Darryl's diminished mental capacity contributed to his commission of his offense conduct. His borderline mental retardation, combined with poor executive functioning and untreated Attention Deficit Disorder meant that Darryl had poor impulse control. Absence these deficiencies, or if he had been appropriately treated, he likely would not have responded impulsively in the violent fashion that he did to the Otis Street shooting initiated by one of the deceased and others. Darryl is also amenable to participation in mental health counseling, ADD treatment, GED counseling and testing and any other appropriate programming while at BOP. He has demonstrated his ability to participate successfully in such programs during the period of his detention, as he completed GED courses (which are generally taught in small groups, a positive learning environment for him) while in a Virginia institution and has begun anger management 10

classes at CTF. According to BOP studies, and conversations with the Probation Office, as well as the testimony of Dr. Solvog, as a cooperator his chances of succeeding in such programs and of not re-offending upon release are significantly higher than other inmate population groups. The Government has requested a sentence of 35 years, while it recognizes that reasonable minds may disagree upon the appropriate length of the sentence. For Darryl, a 35-year sentence is in effect life without parole. He is now 31 years old and there is no parole in the Federal system. After doing 35 years, he will be 66 years old. Given the average lifespan of African American males, especially those with mental health and health deficiencies, there is a good likelihood that he would die in prison. Despite the seriousness of his crimes, and for the reasons delineated herein, the defendant submits that 35 years is an excessive punishment. The defendant asserts that a sentence of not more than 20 years, with recommendations for appropriate program participation and treatment is a sufficient sentence to meet the factors enumerated at 18 USC 3553(a). Respectfully submitted,

_______________________________ Mitchell M. Seltzer, #261933 Counsel for Mr. Woodfork 717 D Street, NW, #310 Washington, D.C. 20004 [phone] CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Sentencing Memorandum was served electronically upon A.U.S.A. Michael Brittin, this 15th day of July2008. ________________________________

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