- The Washington Times - Sunday, June 29, 2008

Nearly a year to the day before he resigned, Attorney General Alberto R. Gonzales told his prosecutors to pursue the death penalty against a D.C. man accused of running a violent drug gang in Washington known as the “Congress Park Crew.”

But after at least four years of investigation, eight months of testimony and eight weeks of deliberations, a federal jury ruled the government couldn’t prove there was a criminal conspiracy called the Congress Park Crew, let alone that its purported leader, Antwuan Ball, 37, had committed any murders.

Jurors acquitted Ball in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment except a $600, half-ounce, hand-to-hand crack-cocaine deal in Southeast Washington seven years ago.

Perhaps thinking his freedom was at hand, Ball cried when the verdicts were read. Indeed, under federal guidelines, he could expect to be released within a few years.

However, federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?

  • THE LEGAL DOCUMENTS: Read the defense’s sentencing memo (download pdf), the prosecution’s sentencing memo (download pdf), and the prosecution’s reply to the defense memo (download pdf). Click here to read the letter from Juror #6.
  • Related to this story:‘Relevant conduct’ can add to sentence, by Jim McElhatton

  • “The rules encourage prosecutors to lack humility,” said Douglas Berman, an expert on criminal sentencing and a law professor at Ohio State University. “An acquittal should be a humbling experience. My sense is they sometimes view acquittal as an annoyance they have to work around.”

    Ball’s attorney, Steve Tabackman, in a recent memo to Judge Roberts, wrote, “It is a sentencing scheme straight from the mind of Lewis Carroll,” referring to the 19th-century author of “Alice’s Adventures in Wonderland.”

    Prosecutors say the practice is perfectly legal and point out that federal sentencing guidelines are advisory, not mandatory. And regardless of the guidelines, Ball’s crime of selling five or more grams of crack cocaine carries by law a sentence anywhere from five to 40 years. They also say Ball remains a danger to the community, which the defense sharply denies.

    Legal experts expect the U.S. Supreme Court to one day take up the issue of acquitted and uncharged conduct sentencing, perhaps as early as next year.

    Secret location

    The case of U.S. v. Antwuan Ball began a 10-minute drive away from the Supreme Court in the Congress Park housing complex, one of the most violent neighborhoods in the nation’s capital.

    At 1:10 p.m. on July 26, 2001, in a secret location somewhere in Southeast, FBI agent Rob Lockhart met with a confidential witness identified in FBI transcripts by the code name Silver Star.

    Then a 22-year-old drug dealer, Silver Star began cooperating months earlier after he was arrested while on probation. Hoping to avoid a long prison sentence, he went undercover, strapped a recording device under his shirt and walked into Congress Park to make drug buys for the FBI.

    It was a dangerous assignment. Congress Park is described by prosecutors in memos as a one-square block open-air drug market long controlled by “scavengers and opportunists,” drug dealers who would get as much cocaine as they could from wherever they could.

    The FBI and Metropolitan Police weren’t as interested in Silver Star as they were in a bigger name: Antwuan Ball. The Ball family was well-known in Congress Park for reasons that both haunt and give hope to its matriarch, Violet Ball-Lee.

    Born in 1970 in Nebraska, Antwuan was the oldest of five children of Air Force serviceman George Ball and his common-law wife, Violet, who also had a daughter from a previous marriage. The couple moved back to Washington, but eventually the marriage broke up under the strain of drug use.

    Mrs. Ball-Lee said in an interview that she’d begun using marijuana with her husband and eventually began selling it to their friends. Using heroin and angel dust, she continued dealing after the marriage broke up, even enlisting her children to help package drugs.

    If any semblance of normalcy remained in Ball’s home, it shattered in the mid-1980s when crack cocaine hit the streets of Washington. Gang violence of the so-called “crack wars” erupted across the city, especially in Southeast neighborhoods such as Barry Farms, Stanton Dwellings and Congress Park.

    With the highest murder rates in the nation, the District became known as “the Murder Capital” of the U.S. Eventually, even the city’s mayor, Marion Barry, was videotaped using crack. The prosecutor who helped convict the former mayor is now the judge in Ball’s case.

    By the time he was 7, Ball was bagging marijuana for his mother. At 11, he was selling in and around Congress Park. And at 15, his mother started buying heroin from notorious D.C. drug dealer Tommy Edelin. Now sentenced to life in prison in a case in which Mrs. Ball-Lee testified, Edelin had relied on Ball’s mother to help cook and package crack cocaine.

    In 1989, Mrs. Ball-Lee was sent to prison for nearly a decade on drug charges. Telling neighbors that their mother left the area because she was in the military, Ball and his younger brother, Kairi, followed their mother into the family business.

    Two shootings

    Two years before Mrs. Ball-Lee’s release from prison, Kairi was fatally shot on Mother’s Day 1995, ambushed outside the Club U nightclub in Northwest at closing time.

    Nearly a decade later, a man named Omar Wazir said he killed Kairi Ball in exchange for $4,000 and a half-ounce of pure heroin he later sold for between $5,000 and $6,000. Wazir disclosed the murder while testifying in the case of another big drug kingpin, Kevin Gray, who is serving life in prison on 19 murder convictions.

    According to the U.S. Attorney’s Office, Antwuan Ball blamed Gray’s organization for his brother’s death at a time when the Ball brothers already had been feuding and competing with Gray.

    Prosecutors argued that Antwuan Ball fatally shot a man named Troy Lewis after hearing that Mr. Lewis had something to do with Kairi Ball’s death. Ball wanted to avoid a war with Gray’s organization, authorities said, but was determined to prove to Gray that he wouldn’t let his brother’s death go unpunished.

    To help prove its case, prosecutors years later turned to Antwuan Ball’s cousin, Kairi Kellibrew. A decade younger than Ball, Kellibrew began using marijuana at age 9 and was selling by 13, according to testimony. He decided to testify against his cousin after being arrested on drug charges.

    Days after Kairi Ball’s death, Kellibrew later testified, he spoke to Antwuan about wanting to help track down the killer.

    “I was talking to Twuan because I wanted to ride on the situation. I wanted to put in some work on the situation,” Kellibrew said. “I wanted to bust my gun about my cousin.”

    Later, Kellibrew said he arrived at the scene of Mr. Lewis’ Jan. 23, 1996, slaying in Congress Park. He said when the police opened the door to Mr. Lewis’ truck, “his brains fell out with his gun in his hand.” He also said Antwuan Ball later admitted killing Mr. Lewis.

    But defense attorneys said the story didn’t add up. While Kellibrew said he saw brains in the street, they argued that a medical examiner’s report showed there were no gunshots to Mr. Lewis’ head and that the shooting happened well after sundown - not during the day as Kellibrew testified.

    In a recent memo, prosecutors Glenn Leon, Ann Petalas and Gilberto Guerrero Jr. stood by Kellibrew as a credible witness, though defense lawyers questioned his years of drug use.

    Both sides said information that might have bolstered their cases didn’t make it into trial. Prosecutors said they seized a “roster” of names of members of the Congress Park Crew. And defense attorneys wanted to show how the Metropolitan Police had closed out the Troy Lewis homicide a decade earlier, blaming someone else.

    For her part, Mrs. Ball-Lee said she told her son while she was in prison not to try to track down her son’s killer.

    “Antwuan called me and he said, ‘Mama, I’m not going to let it go,’” she recalled.

    “I said, ‘Antwuan, if you do, you’re going to go to jail and it’s going to keep on going. … They’re going to kill, they’re going to kill, they’re going to kill. That’s it. You can’t go there.”

    Later, she said, her son relented.

    “He said, ‘Mama, I’m going to let it go.’”

    The deal

    “Alright, this is special agent Rob Lockhart. Again, it’s 7-26-2001; time is approximately 1:16 p.m. CW is going to be heading into the area now to attempt to meet with Antwuan Ball.”

    A transcript of the secretly recorded drug buy detailed how for the second time in as many weeks confidential witness Silver Star tried to set up a deal with Ball. Things weren’t getting off to a good start. Ball wasn’t answering his phone.

    “Come on, man. Answer this jive phone. Keep getting the answering machine. … I’m around here. Give me a call, man…”

    The confidential witness began walking around Congress Park when Ball pulled up in his Acura, saying he’d be back in a few minutes. Silver Star spotted Ball returning and told his FBI handlers listening in.

    “All right fellas here he come.”

    Silver Star got in the car. The deal was for four so-called “eight balls” of crack, which usually contain about 3.5 grams. This time, they were a little short.

    “All these joints like 3 point 1’s…” Ball said.

    “3 point 1?”

    “Yeah.”

    The deal was complete. Silver Star handed Ball $600, and Ball gave Silver Star a half-ounce of crack.

    “Be safe, baby,” Ball said.

    Silver Star drove back to the secret meeting spot with his FBI handlers. It was raining. With the half-ounce of crack in federal custody, Agent Lockhart ended the secret recording.

    “This is Special Agent Rob Lockhart, FBI. The deal is complete. It’s 1:47 p.m., 7-26-2001.”

    Another side

    The significance of the transaction wouldn’t be known for years, when it formed the basis for the only charge that stuck against Ball, a man the federal government considered so violent that authorities saw him a prime candidate for death row.

    Others, including a former White House official, view Ball very differently.

    In 1998, first lady Hillary Rodham Clinton took a trip across the Anacostia River to visit a nonprofit called the Southeast White House. The organization, based in Southeast, served some of the city’s poorest neighborhoods. Impressed by its work, Mrs. Clinton appointed a White House official to learn more and see how federal agencies could help.

    The assignment fell to Janie Jeffers, executive deputy director of the federal D.C. Interagency Task Force in the Clinton administration in the late 1990s. She later won a presidential appointment on the U.S. Parole Commission.

    Ms. Jeffers dove into her work, visiting Southeast three or four times a week. Increasingly, she found herself in the Congress Park housing complex working alongside a community activist named Antwuan Ball.

    “My first recollection is he came over to me and introduced himself and said he wanted to learn what he could do to change his community,” Ms. Jeffers said. “He just said it in such a way, there was this gut instinct that here’s somebody different.”

    Ball also had begun volunteering with the Capital Area Food Bank, where he met Edgar Cahn, special counsel to Robert F. Kennedy during the Kennedy administration and founder of the University of District of Columbia law school.

    Along with Michael Kimsey, chief executive of the District-based Kimsey Foundation, Mr. Cahn and Ms. Jeffers helped Ball start a consulting business and nonprofit ventures in Congress Park called MANN Inc., an acronym for Making a Neighborhood Network, and Changing Neighborhoods into Communities, or CNIC. Mr. Cahn, Ms. Jeffers and Mr. Kimsey remain supporters of Ball.

    Soon, Ball was attending monthly meetings at the White House conference center with Ms. Jeffers.

    In 2002, Ball was even quoted in a newsletter by the Roundtable on Religion and Social Welfare Policy in an article about efforts to turn around Congress Park.

    “We went from having illegitimate control of the neighborhood to being made legitimate,” Ball was quoted as saying in the newsletter. “I couldn’t stand to watch these guys on crack. It was killing me. Some of the guys who I use to sell to are in drug rehab now and they call me in the middle of the night when they need to get through those rough times.”

    In February 2004, Ball was called to testify for a defendant in another D.C. drug case. While on the stand, he admitted dealing cocaine but said he had left the drug life behind.

    “I still consider myself a part of the streets, but I’m a positive part of the streets now and my code of silence is broken,” he said.

    He also testified that his “knucklehead days” in the drug life had ended five years earlier.

    Yet authorities investigating Ball weren’t convinced. With their tape of the 2001 drug deal in hand and statements from numerous cooperating witnesses, Ball was arrested within months.

    The juror

    Jim Caron is a retired economist at the U.S. Department of Agriculture. Nearly two years ago, he got a jury summons, showed up at the federal courthouse and was picked for a trial that would open his eyes to a side of Washington unknown to most federal workers and tourists.

    For eight months, Mr. Caron and fellow jurors were told sharply contrasting versions of life, death and drug dealing in Congress Park. They came to know all the figures in the case by real names and street names: Antwuan “Big Ant” Ball, David “Cool Wop” Wilson and Gregory “Boy-Boy” Bell to name just a few.

    Overall, the U.S. Attorney’s Office said 18 people have been indicted in the Congress Park case since March 2005. Mr. Caron and his fellow jurors acquitted Ball and five co-defendants on conspiracy charges. In addition to Ball’s drug transaction, they returned a total of 17 other felony convictions, including a double homicide against co-defendant David Wilson, against Ball’s co-defendants.

    But for a simple missed deadline, Mr. Caron and others might never have heard of Antwuan Ball. Instead, Judge Roberts would have had to pick a different jury, a “death qualified” panel open to the idea of giving a defendant the death penalty if convicted.

    On Sept. 25, 2006, the U.S. Attorney’s Office filed paperwork notifying Judge Roberts that prosecutors would seek the death penalty against Ball and Wilson. The government’s filing accused Ball of threatening witnesses, trafficking drugs and killing three men - Troy Lewis, Carlton Allen and Trevon Shaw - in his role as leader of the Congress Park Crew.

    But within days, defense attorneys said the government had missed a deadline to file the notice. Judge Roberts agreed and tossed out the death penalty.

    The Justice Department’s Office of Professional Responsibility, an internal watchdog, is conducting an inquiry into the missed deadline, according to sources and records obtained by The Washington Times. The Justice Department declined to comment.

    Last month, Mr. Caron wrote his own letter to Judge Roberts, citing a press release by the U.S. Attorney’s Office on the sentencing of one of Ball’s co-defendants, which stated that Ball faced up to 40 years.

    “Can this be true?” Mr. Caron wrote in the May 16 letter, a copy of which he provided to The Times.

  • THE LEGAL DOCUMENTS: Read the defense’s sentencing memo (download pdf), the prosecution’s sentencing memo (download pdf), and the prosecution’s reply to the defense memo (download pdf). Click here to read the letter from Juror #6.
  • Related to this story:‘Relevant conduct’ can add to sentence, by Jim McElhatton

  • “It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty.

    “Had they shown us hard evidence, that might have been the outcome, but that was not the case.”

    An economist by trade, Mr. Caron estimated that the $23,000 per year it will cost to hold the defendants for total of 151 years would cost taxpayers $3.5 million, on top of what estimated to be $1 million spent on the trial. The U.S. Attorney’s Office declined to comment.

    What’s next?

    Mrs. Ball-Lee, who has remarried, doesn’t spend much time in Congress Park anymore. She says she’s kept busy doting on her grandchildren and holding down a full-time job taking care of nearby elderly residents. Still, she thinks often about her old life and her two oldest boys, one gone and the other in jail.

    When she got out of prison more than a decade ago, she said, Antwuan wouldn’t leave her alone. He was always scared that she might start using again. He’d give her hugs and hold her hand, all while stealing glances to make sure there were no needle tracks on her arms.

    Years ago, while testifying in the Tommy Edelin case, she said Kairi’s death prompted her to turn her life around. For as guilty as she feels about Kairi’s death, she says she also takes solace in the idea that, perhaps, Antwuan decided to change, too, once he saw his mother finally stop using drugs.

    “I did help tear down that neighborhood, I really did,” she said. “I don’t talk about the past. It’s something I’m ashamed of. It’s something I got a lot of heartache in. I got a son dead.”

    But she said she’s changed and so has her son.

    “I told Antwuan to get out of the neighborhood. I told him it was going to kill him. He wouldn’t listen. He said, ‘Ma, I stole from the community and now I got to give back.’”

    The question of whether Ball helped tear down or build up Congress Park, or perhaps both, will weigh heavily on Judge Roberts’ mind. Ball’s sentencing date has not been set. In seeking Ball’s release within a matter of months or a few years at the most, his attorneys will almost certainly argue that he was a positive force in the community.

    In its sentencing memo, defense attorneys also said that if prosecutors get their way, “he will serve that sentence based upon the government’s decision to charge him with crimes that it knew or should have known could not be proved.”

    Similarly, prosecutors will say the neighborhood is a safer place with Ball in prison. In memos, they call Ball “a man who chose to spend the better part of his adult life causing enormous harm to the community.”

    Either way, Congress Park undoubtedly has changed. There’s a new supermarket nearby. Housing developments are taking the place of old abandoned buildings. On a recent day, in the small traffic circle in Congress Park which witnesses described as the scene of open-air drug dealing years ago, the abandoned cars and old refrigerators have long since been hauled off.

    But the basketball hoops are gone, too. And the computers in a little office that residents say Ball helped run for neighborhood children were seized. Now the office is locked up and stores only janitorial supplies.

    As Mrs. Ball-Lee sat down last week to talk about her son, her husband turned on the evening news. A few minutes later, the conversation stopped. The couple listened to a story on the shooting of a 16-year-old D.C. boy, Walter Robinson, found dead in his bedroom.

    It happened in Congress Park.