A sentence of probation and suspended jail time handed out to the nephew of a former senator busted with cocaine, guns and marijuana after leading police on a high-speed chase is causing a commotion in law enforcement and the public.
On New Year’s Day, a concerned citizen called police and reported that a man was walking around Paul M. Pearsons Gardens with what looked like a machine gun, according to the V.I. Police Department.
When police arrived on the scene, Jamal Wesselhoft, nephew of former Sen. Carmen Wesselhoft, was getting into his car. Police followed Wesselhoft and tried to pull him over.
The initial police report said Wesselhoft was arrested for disobeying traffic signals, and V.I. Police Commissioner Novelle Francis has described the pursuit of Wesselhoft as "a high-speed chase."
The chase ended on Flag Hill Road, where police confiscated an AK-47 rifle, a .40 caliber handgun, a 30-round loaded magazine, along with six packets of cocaine and some marijuana found on Wesselhoft and in the car.
He was charged with two counts of possession of unlicensed firearms, possession of a controlled substance with intent to distribute, and simple possession of marijuana.
Wesselhoft pleaded guilty to all the charges a few days later, and on July 29 Judge Michael Dunstan sentenced Wesselhoft to a two-and-a-half-year jail sentence with all but 96 days suspended, 96 days’ credit for time served after his arrest, two years of probation, 200 hours of community service and fines, and fees of a few hundred dollars. Dunstan also ordered Wesselhoft to enroll in training at the Marine Mechanic School and to find a job.
The next day, Francis issued a press release decrying what he said was a “slap on the wrist.”
“For these crimes Judge Dunstan grants Wesselhoft less than two years’ probation with credit for time served? This is wrong on so many levels,” Francis said in his statement. “At a time when we are trying to send a strong message of zero tolerance to the gun-toting criminals, the courts are not applying a sentence that demonstrates there are consequences to their actions.”
On Aug. 2, Gov. John deJongh Jr. issued a statement supporting Francis’ position.
"To a lot of young people who think the way to solve their problems is through violence through the uses of … guns, this sentence, in my opinion, strongly says to them you can have the possibility of a very light sentence without doing jail time," deJongh said in an audiotaped statement.
The board of trustees for the crime-tip-hotline group Crime Stoppers USVI weighed in Aug. 9 with a press release arguing that because of the AK-47, "these offenses required the judge to give the offender a minimum mandatory sentence of 10 to 20 years in prison because Act 7091 … provides a mandatory sentence of 10 to 20 years for possession of an automatic weapon."
The group asks Attorney General Vincent Frazer "to seek a writ of mandamus from the V.I. Supreme Court directing the trial judge to resentence the offender, consistent with V.I. law."
Dunstan, Carmen Wesselhoft and attorneys for prosecution and defense have all declined to comment.
The V.I. Justice Department is largely in agreement, too. Justice spokesperson Sara Lezama said Wednesday the government filed a motion Aug. 5 asking the court to reconsider the sentence and to order the defendant to pay at least $10,000—the legally mandated fine of $5,000 per weapon.
Lezama said the government had arranged a plea agreement but had largely left the sentence to the judge’s discretion.
"The government expected the judge to look at the totality of the circumstances, including the plea agreement and craft, at the end, a sentence fair to the defendant that also protects the community and serves as a deterrent to other criminals," she said.
While the fine may be legally mandatory, it is not clear the law actually requires prison time. Crime Stoppers’ suggestion of a minimum sentence of 10 years is based on the notion the AK-47 is an automatic weapon as defined in the statute.
But AK-47s are relatively common among U.S. gun enthusiasts and those sold in the States are not "automatic" but "semi-automatic," meaning one bullet is fired, not several, each time the trigger is pressed.
And police filed no charges for possessing an automatic weapon.
If the weapon had been automatic and police had used the statute prohibiting automatic weapons, it is not clear how the law should apply. Curiously, the actual text of Act 7091 appears to unintentionally establish a 10-year mandatory minimum sentence for possession of any unauthorized firearm—including pellet guns.
The relevant part of the act stipulates "(w)hoever, unless otherwise authorized by law, has … any firearm as defined in title 23 chapter 5, section 441(d) of this Code, (sic) or any weapon that can be converted into an automatic weapon … and a conversion kit … shall be sentenced to imprisonment of not less than 10 years … ."
The definition of a firearm in the code includes pellet guns and the literal interpretation of the plain text of the act says "any firearm" or any weapon that can be made automatic, so long as there is also a conversion kit. Pellet guns are dangerous and have killed people in the territory, but they are not typically thought of as a machine gun.
Asked to comment, Lezama said she was not sufficiently familiar with the text of the act to offer a statement. Another source in the Justice Department said the department is aware of problems with the text of the bill, but declined to comment further or on the record.
The two charges of unauthorized possession of a firearm, to which Wesselhoft pleaded, carry mandatory minimum sentences of one-year imprisonment each.
But the law does not specifically prohibit suspended sentences, while other mandatory minimum sentencing laws do specifically prohibit them. Judges typically use this discrepancy to argue that if the Legislature intended to prohibit suspended sentences, it would have said so, in the same fashion it did in other statutes, Lezama said.
While the government believes a more severe sentence is in order, it is up to the discretion of the judge, she said.
"As prosecutors, we cannot infringe upon the judiciary’s discretion to impose a sentence that is not mandatory," she said. "But given the type of weapon and the factors in this case, we expected a more stringent sentence."
Despite the sentencing controversy, it is not clear how atypical the sentence is. Several recent sentences by more than one judge in the St. Croix district show similar sentences for similar or arguably more severe charges.
On July 23, Judge Julio Brady sentenced Blaine Gerard to time served and one year of probation on the charges of reckless endangerment, assault in the third degree and carrying or using a dangerous weapon during the commission of a crime of violence.
Unlike Gerard, Wesselhoft did not actually commit a crime of violence, although his attempt to flee put officers at risk.
And on July 20, Judge Harold Willocks sentenced John Jared Southwell to six months in prison, with all but 85 days suspended, and six months probation, for assault in the third degree and carrying or using a dangerous weapon during the commission of a crime of violence.
Southwell is in prison, awaiting trial for the murder of Gabriel Lerner, so there is no apparent impact from that decision.
And on June 25, Brady sentenced Wayne Studdard to a one-year suspended sentence and alcohol dependency treatment on charges of assault in the third degree and possession of a firearm during the commission of a crime of violence—again, a lesser sentence for someone who, unlike Wesselhoft, committed a crime of violence.
