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Drug dealer avoids jail in daughter’s killing

- The Washington Times - Sunday, May 31, 2009

Charged with murder in the 1999 death of his 2-year-old daughter, Frank Howard boasted he would not spend a day in prison.

"If I do plead guilty there, I won't get a day for it," Howard, 39, testified in an unrelated Washington, D.C., drug case in 2004, though he insisted he was innocent.

A drug dealer in Washington in the 1990s, Howard later reached a plea deal that spared him a lengthy sentence in his daughter's death before he began a new life in the federal witness protection program in the fall of 2007, according to court records.

"Frank Howard should have been held accountable, and the fact he wasn't is upsetting," said Prince George's Police Detective Chuck Richardson, one of the investigators in the 1999 killing of Howard's daughter, Keontaye Smith.

The story of Frank Howard, who has gone from an accused child killer to a federally protected witness, provides insight into the little-known deals prosecutors sometimes make to convict high-profile crime figures — and how criminals who cooperate can benefit in unexpected ways.

Howard declined to comment for this story through the Justice Department.

Leniency in the death of his daughter was never part of Howard's deal with federal prosecutors to testify against former associates in a violent drug-trafficking organization in Washington that authorities dubbed "Murder Inc."

Federal prosecutors in Washington said they took no position in the Keontaye Smith case, a separate investigation headed by Prince George's County authorities, who delayed their case for years as Howard cooperated with federal prosecutors.

Howard eventually pleaded guilty to child abuse in his daughter's death in 2006. He was sentenced to eight years in prison. But his plea deal also essentially allowed him to go free the next year. The agreement let Howard serve his 2006 sentence for child abuse "concurrent" with another eight-year sentence he was nearly finished serving in the unrelated federal Murder Inc. drug case, according to court records.

Like Howard, Keontaye's mother, Tamara Smith, also pleaded guilty to child abuse, but she was incarcerated after getting sentenced to six years in prison.

Federal prosecutors weren't involved in the Keontaye Smith case but did help Howard get a sentencing break for other crimes.

Citing "valuable" testimony by Howard against a violent group of drug dealers, including one man convicted in 19 murders, the U.S. Attorney's Office in Washington recommended an eight-year prison term for Howard after he pleaded guilty to conspiracy in the "Murder Inc." case.

Among other federal crimes, Howard aided in three murders and supplied the gun in the attempted murder of an FBI informant, according to court records. If convicted at trial, he would have faced life in prison.

In that way, Howard isn't unlike other "cooperators" — such as Sammy "The Bull" Gravano, Henry Hill and Mickey Featherstone — criminals who testify against major crime figures, get a reduced sentence then disappear into the federal witness protection program.

Among those Howard testified against was longtime friend Kevin Gray, who was convicted in 2003 of ordering or carrying out a record 19 murders in the District. He was sentenced to life in prison after a jury deadlocked on the death penalty. His conviction remains under appeal.

Yet Howard was different from other cooperators, too. At the same time he was helping the U.S. Department of Justice convict violent D.C. drug dealers like Gray, the state of Maryland was accusing him of starving and beating his own daughter to death.

"The fact that Howard was cooperating with the federal government would certainly affect the perceptions of the Maryland prosecutors," said Alexandra Natapoff, a professor at Loyola Law School in Los Angeles who has testified to Congress about the use of informants in federal cases.

"I would not call this in itself an anomaly. What is an anomaly is the crime, it shocks the conscience," she said. "The only reason this case stands out is because the Maryland case is so heinous. It seems wrong that the process works this way."

Hospital visit

On Valentine's Day 1998, two weeks after her first birthday, Keontaye Smith was dehydrated and too weak to sit up. She weighed about 12 pounds, not much more than half the typical weight of a baby her age, according to interviews and medical records available through court filings.

Keontaye had been taken to Children's National Medical Center in Washington. Doctors could find no records that she had seen a physician or received any immunizations since birth, according to court records.

Still, Keontaye rallied in spite of her fragile condition. During her hospital stay, she ate mashed potatoes, pudding, applesauce and other baby food, gaining a half-pound before the hospital released her after five days.

Fifteen months later, on May 23, 1999, uniformed officers led homicide Detective Richardson into Keontaye's room in her family's small Landover apartment, according to police records.

Keontaye was still in bed. Detective Richardson checked her for signs of injuries. According to notes, he saw dried blood on the hardwood floor near her bed.

"I've been a part of many investigations where children were murdered, but at no time have I ever seen a child who was ever this malnourished," he said in an interview nearly a decade to the day later.

"Even if you take away the contusions and the blood on the brain and everything else, there's no question in my mind both parents should have been punished for letting a child get like that.

"The girl couldn't care for herself."

Citing a fractured skull, severe malnourishment and other serious injuries, prosecutors later filed court papers arguing there was "no logical explanation" for Keontaye's death except "inflicting trauma and severe caloric deprivation."

The defense had planned to argue in part that Keontaye did not die because of abuse or neglect but from natural causes as a result of "the extreme disabilities with which she was born," according to court records before the plea agreements.

Police interview

Days after Keontaye's death, Prince George's detectives questioned Howard and Keontaye's mother in separate interviews, according to police records.

They asked Howard not only about Keontaye's death but what happened to another one of the couple's children, a 7-month-old sister hospitalized as "grossly malnourished" not long after Keontaye's death.

Like Keontaye, the baby suffered from "severe malnutrition," according to records. She also had eye injuries that "required the amount of force one sees in a car accident," the records show. Both parents denied hurting the children.

"We didn't take her to the hospital because we thought you all would take her away from us," Howard told Detective Sean Chaney of the decision not to seek medical care for the baby.

In a letter to a Maryland judge, Smith said she did not abuse her children and was sorry for not getting them medical attention. But she said she had scheduled doctors visits for both children, though Keontaye died the day before her appointment.

During his interview with police, Howard was asked why he'd leave the couple's children alone in the apartment while Smith went to work.

"Because I thought they would be all right," he replied.

Detective Chaney also pressed Howard about the last time he saw Keontaye alive, according to police records.

"How did Keontaye die?" the detective asked.

"I don't know how she died," Howard said.

"What do you suspect?"

"I don't know."

Running away

"You know I ain't gonna ask you for nothing unless I need it … and I need it for real, man," Howard said in a phone call a few weeks after his arrest in Keontaye's killing. "Cause that little two thousand I got I was gonna try to hold that."

"You know I paid for the funeral and everything myself."

Howard had no way of knowing at the time, but the FBI was listening in on Howard's conversation with an acquaintance through a wiretap. In a joint investigation with D.C. police, federal agents were following more than a dozen suspected members of a violent drug-trafficking and murder-for-hire organization in Washington. Authorities said one of its leaders was Kevin Gray.

Howard and Gray had been friends since childhood. Gray even helped raise money for Howard to post bail after he was arrested in the Keontaye Smith case, according to court records.

The two men grew up a few apartment buildings apart on Southern Avenue in Southeast Washington in a neighborhood ravaged by drugs and killing. Their teenage years marked a time of unprecedented violence in the nation's capital.

From 1985 to 1991, the number of homicides in Washington more than tripled from 157 to 509, according to the District's medical examiner. The killing, most of it by gunfire, coincided with the influx of crack cocaine into the city.

Gray and Howard and their associates, many of them childhood friends, made up to $50,000 a week selling cocaine on Robinson Place, a small dead-end street in Southeast Washington known as "the dungeon" among drug dealers, according to testimony.

"We protected ourselves. We had guns. We had guns everywhere around there, and we didn't let nobody else come in there," one-time Gray associate Maurice Andrews testified. Like Howard, Andrews pleaded guilty to conspiracy in the Murder Inc. case and entered the witness protection program, according to court records.

"We was making so much money … so many cars, so many clothes, jewelry and stuff like that, so people knew we was getting a lot of money, and they'd get jealous and they'd come around and try to rob us or kidnap us or stick us up, stuff like that," Andrews said.

Howard was "part of our family," according to Andrews, adding that Gray and Howard were like cousins.

Gray aligned with another drug dealer, Rodney Moore, a one-time associate of Rayful Edmond III, one of the first major crack dealers in the District, according to prosecutors. Moore was convicted in 10 murders. Like Gray, Moore's conviction is under appeal.

In contrast to the flamboyant Edmond — who reportedly wore a Rolex, drove a Porsche and handed out $100 bills to neighborhood children — Gray and Moore operated more discreetly in the decade after Edmond's 1989 conviction, according to court records.

If Moore was the businessman, Gray was the enforcer, killing to settle old drug debts, to keep people from talking to police or just to make money, according to prosecutors.

"He gets suspicious and thinks you're asking him questions for a reason, and he ends up killing you," Andrews testified.

By 1999, investigators had enough evidence to arrest Gray, Moore and other suspected drug associates. Gray was arrested at the Club 55 strip club in Washington on a tip from an FBI informant. Weeks later, the informant was paralyzed in a retaliatory shooting for which Howard said he supplied the gun and getaway car.

Despite the high-profile arrests, announced in a press conference by then-U.S. Attorney for the District Wilma A. Lewis, investigators still couldn't find at least one high-ranking member of the organization: Frank Howard.

Howard talked by telephone to a detective in the Gray case, promising to turn himself in. But he instead fled to California. Months later, an undercover federal agent showed up at the home of a relative of Howard's in Los Angeles. Dressed as a delivery man, the agent knocked at the door and said he had a package for Frank Howard.

"So I went to the door and I signed for the package," Howard later testified. "Then after I signed for it, I seen the person walking out of the gate. And when he took his hat off and waved his hat, I seen FBI agents just come from everywhere."

Back in federal custody and facing life in prison, as well as pending murder charges in his daughter's killing, Howard eventually decided to cooperate with federal prosecutors.

"I'm saying, like the John Gotti case, we're charged with the same thing he was charged with," Howard later said in court, explaining to a defense lawyer his decision to cooperate. "You all lawyers know you all [are] not going to win this case. John Gotti is the only one that I know of who won a RICO case."

Howard spent years telling jurors and investigators about drugs, guns and killing in Washington. All the while, the Keontaye Smith case was put on hold.

The deal

Howard's involvement in the Gray case, which spanned years and involved testifying in at least three D.C. trials, sharply altered the way in which the state of Maryland administered justice to Howard, according to interviews and court records.

For one thing, with Howard in federal custody and busy testifying in Washington, Maryland prosecutors delayed the Keontaye Smith case until 2006. Meanwhile, the court file remained largely untouched, along with evidence of what one prosecutor called Keontaye's slow, cruel and cold death.

Federal prosecutors said they never asked their counterparts in Prince George's to give Howard special treatment in the Keontaye Smith case.

"We were really clear to [Howard] in the beginning that we're not going to help you in that Maryland case," said former Assistant U.S. Attorney Timothy Heaphy, one of the prosecutors in the Gray case.

"We also didn't want the jury to think we're giving a child murderer a break because he's talking about guns and drugs. It wasn't our case. He was willing to take his chances in Maryland."

Still, even if unbeknownst to federal prosecutors, Howard's plea deal in Maryland was specifically tied to his cooperation in the Gray case, according to court records and interviews.

Howard's defense lawyer in Maryland, Richard Finci, said he sent a letter in 2002 to Tonia Belton-Gofreed, the Prince George's prosecutor handling the Keontaye Smith case at the time, outlining a deal he said the prosecution agreed to for his client. The letter, he said, called for Howard to get a sentence to run "concurrent to but no longer" than his federal sentence.

The defense attorney said a courtesy copy of the letter was sent to Detective Richardson, though the detective said he was never told by defense lawyers or prosecutors about Howard's plea deal. Ms. Belton-Gofreed, who is no longer with the prosecutor's office, said she does not recall agreeing to a deal to allow Howard to avoid additional prison time in his daughter's death, though a Prince George's prosecutor in 2006 told a judge that Ms. Belton-Gofreed negotiated the agreement.

According to Mr. Finci, the deal in the letter included making Howard's plea deal in Maryland dependent upon federal prosecutors filing a so-called "5K" motion on Howard's behalf in the Kevin Gray drug case.

The 5K motion, named for a section of federal sentencing guidelines, allows federal judges to give defendants a reduced sentence if prosecutors say they've provided "substantial assistance" to the government in an investigation.

Mr. Finci said it was his idea to make the 5K part of Howard's plea deal in Maryland, so Prince George's prosecutors would have proof of Howard's cooperation and truthful testimony in the Gray case.

Asked why Howard deserved a favorable deal in the child-abuse case for his cooperation against drug dealers in Washington, Mr. Finci said, "It was a matter of a plea agreement that was negotiated to his benefit, and which he smartly accepted," he said.

Calling Howard a "particularly valuable" witness, federal prosecutors filed a 5K motion for Howard in 2005 and helped him to get a sentence of eight years for his federal crimes. The sentence also began retroactively, meaning Howard got credit for time he served in federal custody since 2000.

Channing Phillips, a spokesman for the U.S. Attorney's Office in Washington, said federal prosecutors had no reason to know that the filing of a 5K motion for Howard in Washington would affect the disposition of the Keontaye Smith case in Prince George's.

"We took no position in that case," he said.

In a sentencing memo, federal prosecutors said Howard aided in three murders. In the 1994 murder of Ronald Powell, for instance, Howard was paid $500 after driving a getaway car and tossing the gun used in the murder over a bridge into the Anacostia River, according to court records.

"His decision to cooperate was very difficult given his close relationships with Kevin Gray and other defendants, but those relationships made his cooperation extremely valuable," federal prosecutors wrote in a sentencing memo on Howard's behalf in 2005.

"His cooperation also entailed significant risk to his safety, and the likelihood that he will never be able to return safely to the neighborhoods where he has spent his entire life."

The sentence

With his testimony in the Gray case finished, Howard remained in federal custody but was returned to Prince George's for a hearing in the Keontaye Smith case on Jan. 6, 2006.

Prince George's prosecutors dropped murder charges against Howard. In exchange, he pleaded guilty to two counts of child abuse, which together still carried up to 30 years in prison.

By then, the original prosecutor in the Keontaye Smith case, Ms. Belton-Gofreed, had left the Prince George's State's Attorneys Office. And the new prosecutor seemed uneasy with the deal Howard was getting at the hearing.

"Your honor, all I can tell the court is because this offer was made by someone in our office and was accepted, we believe we can't change the offer at this point," Assistant State's Attorney Donine Gaynor said at Howard's Jan. 6, 2006, sentencing, according to a transcript.

"It's our opinion we can't change the contract," she said.

Ms. Gaynor's boss, Prince George's State's Attorney Glenn Ivey referred questions about Howard's plea deal to Ms. Belton-Gofreed, saying through a spokesman that the agreement was brokered before he took office.

While Mr. Finci said he had sent Ms. Belton-Gofreed a letter outlining the deal in 2002, she said she doesn't recall agreeing to any plea bargain that would have allowed Howard to avoid serving additional prison time in the Keontaye Smith case.

"There was no reason to negotiate," she said. "I had the case when he was first charged, then he was snatched by the feds.

"He was supposed to be brought back from D.C. He was supposed to be going to trial. I was gone from the office. I don't know what happened after that."

Judge E. Allen Shepherd, who died last year, asked Ms. Gaynor if prosecutors still approved of the deal at Howard's 2006 plea and sentencing hearing.

"It's our opinion we can't change the contract," Ms. Gaynor replied.

"Are you going to stand up and scream when I impose the sentence?" the judge asked.

"No," Ms. Gaynor replied, later adding, "It was offered, it was accepted."

After Judge Shepherd sentenced Howard to eight years for child abuse, prosecutors did not object when Mr. Finci asked that the sentence be served "concurrently with any other sentence that Mr. Howard is serving at the present time." The judge agreed. By 2006, Howard's sentence in the Gray case was nearly finished.

On Sept. 14, 2007, Howard was released from federal prison and was set to enter into the federal witness protection program, according to court records.

The U.S. Marshal's Office, which administers the witness protection program, does not discuss individual cases or confirm whether anyone has entered the program. The Times confirmed Howard's entry into the program through court records and transcripts in the Keontaye Smith case.

Keontaye's mother wasn't so lucky at her sentencing. Like Howard, Smith pleaded guilty to two counts of child abuse but got a six-year prison sentence. Reached by letter last year, she declined to comment for this story. She was recently released from prison, according to court records.

In one of more than a dozen letters she sent to Judge Shepherd, Smith questioned why she was incarcerated while Howard was free. "I know that my association with a proclaimed gang member of Murder Inc., Mr. Frank Howard, is more the reason that I am incarcerated," she wrote.

Smith's lawyer, former public defender Nicholas E. Rattal, is now a Prince George's Circuit judge. He declined to comment for this story. But he previously argued in court papers that Howard "got no jail time" and that "all parties agree" Howard was the "actual physical abuser."

"I mean, you know, murder is a terrible crime," Judge Shepherd later explained at a status hearing in the Howard case, "and what happened to this infant is in no way mitigated by reason of the fact that apparently what Mr. Howard was involved with, with a bunch of people downtown, was multiple murders and a lot of other terrible crimes, too."

"But that was the deal."