Defendants in one of Virginia's biggest marijuana smuggling cases recently offered to donate as much as $1 million to rural Cumberland County in order to avoid stiff prison sentences, according to prosecutors.
"When I first heard it, I thought it was a gag," said Fairfax County Commonwealth's Attorney Robert F. Horan, who was dispatched from Northern Virginia to help prosecute the case.
Although the $1 million would have been a bonanza to the impoverished county, Horan rejected the offer, made late last year, as improper. Cumberland County, located west of Richmond, operates its entire government at a cost of $2.8 million a year.
The cash offer is not without precedent. Court officials in at least two other localities -- one in Florida and the other in North Carolina -- agreed to accept hundreds of thousands of dollars in "donations" from accused drug smugglers to local governments. In return, the defendants, said to be members of rings peddling vast quantities of drugs, received probation instead of prison.
In the Virginia case prosecutors say the $1 million offer represented less than one-tenth of the value of the marijuana linked to the defendants.
The cash - giving practice has prompted strong criticism from some narcotics prosecutors. They say the donations are tantamount to letting drug defendants buy their way out of prison, that the practice discriminates against the poor, and that it is an ineffective penalty against wealthy marijuana smugglers.
"It just smelled of buying your way out of a crime," said Horan. "It's got a bad ring to it."
Horan and James P. Baber, the Cumberland County prosecutor, said they cut off discussions about the donation before any formal money offer was made. Baber said he had no doubt that the seven defendants in the case would have come up with the money if the prosecutors had agreed to the prroposal for leniency.
Shortly after the defendants were captured with nearly seven tons of marijuana on Dec. 22, 1978, on a remote farm in Southside Virginia, police found $1.8 million in cash stuffed in four suitcases in a Richmond motel. (Police confiscated that money for the state and the donation proposed by defense lawyers would have been in addition to the seized money.)
Drug prosecutors say the donations are small change to many large-scale smugglers operating along the East Coast. David Vinikoor, a Fort Lauderdale, Fla., prosecutor who calls the donations "outrageous," says he has handled cases against smugglers who spend hundreds of thousands of dollars to buy fleets of high-speed boats, trucks and airplanes to ferry drugs into the country.
"What's another quarter of a million dollars to buy their way out of jail?" he asked rhetorically.
North Carolina prosecutor William C. Griffin, who agreed to approve $475,000 in donations from five accused smugglers, said he sees the issue differently. "It wasn't a deal of letting them buy their way out of jail," he said, defending a plea bargain agreement that has given a poor county on the state's coast enough money to help build a new school building.
"I'm totally against the drug trade," said Hyde County School Superintendent Scott Coble. 'But I feel this is a beneficial use of the monies . . . since the drug business generally preys on the young."
In Florida, two defendants accused of participating in a scheme to buy 1,000 pounds of marijuana from undercover police last week were placed on probation after donating $260,000 to the Fort Lauderdale police department. The judge in the case accepted the offer from defense lawyers despite strong objections from prosecutors.
Prosecutors, including those who disdain the practice, say they are unaware of anything to prevent the donations from continuing. In fact, some say they foresee the practice expanding as more and more local governments use smugglers money to renrich their treasuries. "I think we're going to see it happening all over the country," said Fort Lauderdale prosecutor Vinikoor.
Defense lawyers argue the donations are a legitimate way of penalizing drug smugglers in light of government's refusal to legalize marijuana.
"This would only work in a marijuana case," said Miami lawyer Joel Hirschhorn, who made the donation offer in the North Carolina case. "It would not work in a cocaine case, and it certainly would not work in a heroin case," he said.
"It's taxation without incarceration," Hirschhorn said.
Lawyers also content it's an effective way to use marijuana profits to bail out financially strapped local governments. "It's a lot smarter than Proposition 13 in California," Hirschhorn said, referring to the controversial property tax ceiling initiative.
The local governments are not the only ones who would get a tax break, according to Hirschhorn. He believes his clients also will get a tax windfall, writing off up to 50 percent of their taxable incomes by declaring the huge donations as charitable contributions on their federal income tax returns.
An Internal Revenue Service official said contributions to local governments can result in 50 percent deductions, but tax officials say they could challenge Hirschhorn's clients on the grounds the money was not freely given.
One of the defense lawyers in the Virginia case, who asked not to be identified, said he justified the donation would have helped local government. "Governments," he said, "are having severe shortage-of-revenue problems, and the courts ought to be sensitive to that," he said.
Cumberland prosecutor Baber said a $1 million donation would have been nothing compared to the profits that the Virginia scheme involved. Police suspect that the nearly seven tons seized, the second largest haul of drugs in Virginia history, were actually part of a 25-ton, $11 million deal.
To stay out of prison, the defendants hired some of the best criminal lawyers in Virginia, including Watkins Abbott, a retired Virginia congressman and prominent lawyers from Richmond and Charlotteville.
Six of the seven Virginia defendants ended up pleading guilty after the donation proposal fell through. Of the three sentenced so far, Douglas Bogue, 28, got 20 years in prison, William N. Syfrett, 30, received 15 years and Daniel C. Crowley, 34, was handed a 12-year sentence.
North Carolina prosecutor Griffin said his Virginia counterparts clearly had a strong case that did not require them to plea-bargain. "You have to evaluate every case on its merits," he said. "You can't compare them.
"We had a case where we very well might have ended up with nothing," he said.
He said he feared that the courts could have dismissed his case on a legal technicality because a police search for the drugs may have been improper.
After two days of hearing, a North Carolina judge ruled the search was valid. Instead of proceeding to a jury trial, Griffin then entered into the donation agreement.
Griffin said he and the defense lawyers agreed on the $475,000 sum after a few days of "haggling." "We started up around a million," he said. "I think it was a business deal from their point of view. They would have had to spent that money trying the case."
One of the North Carolina defendants also was required to give the school system 19 acres of land he owned in the county as well as a mobile home he had on the property when drugs were seized there by police.
Griffin said he believed the payments were an effective penalty because the defendants would have had to spend only a short time in jail if they got active sentences. "We would have spent four months trying the case and they would have ended up getting three-to-five-year sentences and would have served only nine months, he said. "That's not really accomplishing anything."
Other prosecutors say letting smugglers walk out of the courtroom free is not the way to stop the massive drug trade.
A short time after the sentences were handed down in the North Carolina case, one of the defendants was again arrested after a police dog allegedly smelled him carrying a few ounces of marijuana at Miami International Airport. he is facing a probation revocation hearing in North Carolina that could lead to his being sent to prison. Regardless of what happens to him, prosecutor Griffin said, the agreements protects the county from having to refund the money.
Pat Sullivan, a federal prosecutor in Miami who has tried many major smuggling cases, said drug runners' biggest fear is imprisonment. "Even as small as the jail sentences are," Sullivan said, "they're still the main deterrent."