Federal charges pursued against man in jail for life

January 18, 2009|By Tricia Bishop | Tricia Bishop,tricia.bishop@baltsun.com

The Maryland U.S. attorney's office is pursuing a new drug case against a Baltimore man, despite having recently sent him to prison for life.

The move is raising questions about the government's motivation and the strength of the earlier convictions, which the defendant, David "Chicken" Ellerby, has appealed to the 4th Circuit Court of Appeals.

Some say it simply emphasizes how dangerous the agency believes Ellerby to be. The 36-year-old has beaten dozens of state charges, including murder and attempted murder, and law enforcement agents consider him one of the city's most dangerous residents. Others - Ellerby included - say it proves that the first conviction is ripe to be overturned.

"It certainly shows that they think he's a very, very significant offender that they're doing the second trial," said former federal prosecutor David B. Irwin, who's now in private practice and not associated with this case.

Ellerby pleaded not guilty to the drug charges Friday during his initial appearance in U.S. District Court in Baltimore and requested a speedy jury trial, which will likely last a week, the prosecution said.

In the new case, the government claims he possessed and planned to distribute mixtures or substances containing crack cocaine and heroin in March 2004. He has already been acquitted on the same charges in Baltimore Circuit Court. But the U.S. attorney's office chose to follow up with its own indictment in July last year after securing the required U.S. Department of Justice approval.

Ellerby, who's temporarily in Baltimore's Supermax prison until he can be transferred to a federal facility, could face a maximum of life in prison in the case and a fine of up to $4 million.

"The government is showing that they made mistakes in my first trial, so they're bringing back a case that I had in 2004 with no new evidence or anything," Ellerby said in a phone call to The Baltimore Sun on Thursday night. Why is the government "wasting taxpayer money by having me go to another trial?" he asked.

The government originally planned to fold these charges in with the first case, but U.S. District Judge Catherine C. Blake "indicated that she did not want to try both cases in one trial," U.S. Attorney Rod J. Rosenstein said in an e-mail yesterday.

Rosenstein didn't address the specifics of this case but said his office generally pursues charges against defendants already serving lengthy sentences "in case the first conviction is overturned on appeal." If there were no appeal pending, his office probably would not follow up with a successive prosecution, he said.

Rosenstein said his office rarely loses criminal convictions on appeal, and both Ellerby's former and current attorneys said the 4th Circuit Court of Appeals seldom overturns such verdicts.

The U.S. attorney's office is "going a little overboard, I think," said Idus J. Daniel Jr., the Washington attorney who was appointed as a public defender to represent Ellerby during his first trial.

"They got the guy. The chance that the 4th Circuit is going to do anything to that conviction is almost zero," Daniel said. "Why they're expending additional funds and time and effort is beyond me."

Ellerby asked for new representation in his appeal. Elkridge attorney Michael D. Montemarano was appointed to handle that case and the new one, which he says are entwined.

"The obvious question is whether or not there's a problem with the first conviction," Montemarano said last week.

Before the hearing Friday, Montemarano said Ellerby's new case might be tainted. One of the officers associated with Ellerby's 2004 arrest, Charles Hagee, was found guilty of misconduct in office in connection with a 2004 incident in which he responded - drunk in a police car - to a 911 call in which Hagee was the suspect. Baltimore State's Attorney Patricia C. Jessamy barred Hagee last year from testifying in any of her prosecutors' cases.

In August, a federal jury found Ellerby guilty of five drug offenses from 2006 through 2007. In November, Blake, the federal judge, sentenced him to three life terms and two 30-year terms in federal prison, to run concurrently.

Ellerby vowed to appeal his convictions, which he has since done. In an interview late last year, Ellerby said the government's cooperating witness - who has also beaten state gun, drug and assault charges - isn't credible.

According to court documents, the witness, Wallace Tito Sanchez, sold drugs while he was working for the government, which the prosecution said he incorrectly believed he was authorized to do.

"I understand that the justice system targeted me for the things that I done in the past," Ellerby said in November.

"If they really wanted me, they could have used better techniques," he said. "The government just went about it wrong. I believe in the justice system. I believe they do a good job when they do a good job. ... And if you have to let me go and do it right, then do it right. Don't take my whole life away from me on this guy."

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