Posted on 01/02/2008 8:05:33 PM PST by Ladycalif
I would pose the suggestion that since the law was never intended to be twisted as it was by Johnny Sutton that the politicians are reluctant to clarify it. By so doing they would give tacit credence to Sutton’s ludicrous use of it as currently written.
We will have a better grasp of the correct interpretation of the law after the appeals court decision. They have already indicated that Sutton’s prosecutors “over reached”. I find an over reaching prosecutor more scary than a LEO over reaching with a bad guy. [I know, you argue it could have been someone pure as the driven snow. But, it wasn’t! It was a professional drug smuggler who continued his smuggling even after given the biggest break of his life by Sutton’s office.]
We have experienced the damage a rogue prosecutor can do, here in North Carolina. Mike Nifong proved that a prosecutor acting out of personal gain can destroy many lives and reputations. Fortunately, he has been “defrocked”.
This is reeeeeeeeeeeeely a travesty that Bush has not pardoned or commuted the sentences of these two men!!!
This along with locking up Marines in the brig for fighting our enemies and his not enforcing the immigration laws, deporting illegals and securing the borders has soured me on Bush forever. PERIOD
1/2009 won’t come soon enough for me!
My prayers to them and their families. I have written numerous times to the White House. Our President simply doesn’t care what any of us thinks about this.
Does anyone know when the Appeals court is supposed to rule? Can’t Congress do anything?
If they changed their name to Scooter they’d have been out by now.
I’ll settle for Sutton being put in full retirement (prison would be better).
Hopefully, his dreams of being appointed to the Federal bench have been permanently squashed.
well I sure would like to see Compean & Ramos released from prison...
I don’t know how anyone can expect the BP agents to do their job competently when they have to think that by doing their jobs while putting their lives on the line each day; it might land them in prison!!!
President Bush: Pardon Ramos and Compean.
I have yet to see a profile of Johnny Sutton's personal life. In a professional directory, he refused to list his religion and his marital status. Wonder if he appears to be living beyond his means or if his actions against Ramos and Compean were ideologically/sadistically motivated.
The law is clear, use a gun in the commission of a crime and you get an automatic ten years. Ramos and Compean were convicted of assault, since they used a gun they are subject to that law.
All of this hooey about the law never being intended for LEO’s is just hogwash. That law WILL be used against a corrupt cop who may use his gun while on duty during a commission of a crime that involves premeditation, corruption or a RICO situation. Is anyone here suggesting it not be used in that situation?
All that needs is for Congress to pass legislation clarifying that it cannot be used against an LEO that uses poor judgment during the normal course of their duties and doesn’t meet any of the above qualifications. That takes care of any “over reaching prosecutors” now and in the future and including Ramos and Compean.
Again I ask why has this not been done? If, as you state above, this issue has the support of a majority of congress, it would be an easy task to get the language correct and then passed in both houses. Bush would sign it in a minute because it would get his tail out of the fire on this one.
But nothing happens. Hunter does nothing, Rohrbacher does nothing, Feinstein does nothing...except hold press conferences, speak at rallies and in general make grand pronouncements that make good photo ops for their political careers.
What about the upside of this legislation? Not only would it get R&C out of jail, it would protect any and all LEO’s who may be in the same situation in the future. LEO’s would once again feel they could execute their duties without the specter of this 10 year mandatory hanging over their heads if they make a mistake in the hat of the moment.
In other words, it would ALL BE fixed.
It seems as if there are some here who want this sad situation to continue because it is good PR and furthers
an agenda that doesn’t include freeing Ramos and Compean.
People reading here need to consider this and wonder if they are being duped and used to advance an agenda that doesn’t have the welfare and safety of out Border Patrol at heart.
“This is reeeeeeeeeeeeely a travesty that Bush has not pardoned or commuted the sentences of these two men!!!”
Do you believe they should be pardoned on the sentences that related to their cover up, destruction of evidence and obstruction of justice?
“I have yet to see a profile of Johnny Sutton’s personal life. In a professional directory, he refused to list his religion and his marital status. Wonder if he appears to be living beyond his means or if his actions against Ramos and Compean were ideologically/sadistically motivated.”
Spoken like a true brownshirt.
It’s mean spirited and inexcusable that people on FR who have been hyping and pounding on a Bush pardon (which isn’t going to happen due to the attempted cover up) for two years instead of hyping and pounding on their elected representatives to quickly and easily pass legislation to get R&C out of jail and protect all future LEO’s.
Is it just me or does this constant and heated attack on Bush, Sutton, the justice dept, etc. have the same flavor of attacks against Bush after Katrina?
Do we have some “plants” on FR?
In a country that has murdered 60 million unborn by judicial decree, you expect action?
Senator Cornyn disagrees with you:
..."this prosecution sends a message to every law enforcement agent that if you shoot in the line of duty and you cannot prove that you were justified in using deadly force, regardless of whether you were mistaken in that belief, you'll be prosecuted and receive at least 10 years incarceration under 18 USC Section 924(c) stacked on top of other sentences; this despite the fact that Section 924(c) was never intended by Congress to be used to punish law enforcement officers who use their weapons in the line of duty."
The petticoats of people who have been using Ramos and Compean to further their own agendas, whether it be border security, illegals, brown people, the new world order, the illuminati or just plain get George Bush, are starting to fray. And you have been at the head of the pack. For over a year you and a few others have been wailing and gnashing your teeth over the horrible treatment of R&C and not once have you asked Hunter or others why they don’t simply pass legislation to correct and clarify this law regarding LEO’s.
Because when your agenda is politics or propaganda killing the golden goose is dumb. Which is sad because Ramos and Compean rot in prison while you play your PR games.
So don’t come in here and shed your crocodile tears over them, because their welfare is farthest from your mind.
Olson and Brewer lay out what kind of malfeasance Sutton's office committed. First, as they point out, Sutton deliberately changed the wording of the statute in order to prosecute the agents :
" A. Each of Counts Four and Five of the Indictment Contains an Erroneous Allegation of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A).In McGilberry, this Court ruled that, in order to charge a crime under 18 U.S.C. Section 924(c)(1)(A), an indictment must allege that a defendant either has “use[d] or carrie[d] a firearm ... during and in relation to any [crime of violence]” or has “possess[ed] a firearm” “in furtherance of” such a crime. McGilberry, 480 F.3d at 329 (emphasis added). Conspicuously absent from this ruling is any mention that an indictment charging a violation of 18 U.S.C. Section 924(c)(1)(A) would be sufficient if it alleged that a defendant “discharged”a firearm during and in relation to a crime of violence, such as was alleged in Counts Four and Five of the indictment in this case.
Indeed, six years before McGilberry, this Court ruled that “discharging a firearm during and in relation to a crime of violence” was not an “actus reus” element of the offense defined by 18 U.S.C. Section 924(c)(1)(A), but only a “sentencing factor.” See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
One year after Barton, the Supreme Court affirmed this 5th Circuit rule, concluding that 18 U.S.C. Section 924(c)(1)(A) defines a “single crime,” namely, the use or carrying of a firearm during and in relation to a crime of violence or the possession of a firearm in furtherance of such a crime. See Harris v. United States, 536 U.S. 545, 550-53 (2002).
In Harris, the Supreme Court determined that 18 U.S.C. Section 924(c)(1)(A)(iii), which referred to the discharge of a firearm, did not define a separate offense. Rather, it ruled that subsection (iii), like its companions (i) and (ii), identified only certain “sentencing factors” to be considered by the trial judge after conviction of the offense that is fully defined in the paragraph immediately preceding subsection (i). Id., 536 U.S. at 552-54.
Sutton deliberately misstated the statute to the Grand Jury to obtain indictments :
"In disregard of these definitive rulings, the prosecution in this case obtained from the Grand Jury an indictment setting forth Counts Four and Five, which charged Defendants with the crime of having “knowingly discharged a firearm ... during and in relation to a crime of violence....” Document No. 66, p. 3, 1R-119-126 (emphasis added).Having misstated the crime defined by 18 U.S.C. Section 924(c)(1)(A), Counts Four and Five failed to charge either Defendant with any criminal offense whatsoever. See McGilberry, 480 F.3d at 329 and Barton, 257 F.3d at 443."
Olson and Brewer elaborate further :
"B. The Misdescription in Counts Four and Five of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A) Was Plainly Erroneous.Even before the United States Supreme Court decided Harris, and years prior to the indictment and trial of Defendants Ramos and Compean, this Circuit ruled that the “discharge” of a firearm was neither an element of the offense defined by 18 U.S.C. Section 924(c)(1)(A) nor a separate offense defined by 18 U.S.C. Section 924(c)(1)(A)(iii), but was only a sentencing factor. See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
Notwithstanding those pertinent precedents, the prosecution in this case erased that well-established distinction, substituting “discharge” for one of the statutorily-identified actus reus elements — use, carry, and possess. As was true in McGilberry, where the prosecution “erroneously combined the ‘possession’ prong of the statute with the ‘during and in relation to’ prong,” it was “plain error” for the prosecution to combine the “during and in relation to” prong with the “discharge” factor, thereby creating a purported criminal offense never enacted into law by Congress. See McGilberry, 480 F.3d at 329-30."
Then Olson and Brewer show that the Court's instructions to the Jury were in error :
"Not only did the prosecution misdescribe in Counts Four and Five of the indictment the crime defined by 18 U.S.C. Section 924(c)(1)(A), the trial court misdirected the jury.
First, the court erroneously told the jury that “Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to discharge a firearm during and in relation to a crime of violence.” See Jury Instructions, pp. 27-28; 2R424-425 (emphasis added).
As pointed out in sections II. A. and B. above, that instruction to the jury is flatly contradicted by Harris, Barton, and McGilberry.
Second, having misdescribed the elements of the offense, the trial court erroneously directed the jury that “to find the defendant[s] guilty of this crime, you must be convinced that the government has proven ... beyond a reasonable doubt ... [t]hat the defendant[s] knowingly discharged a firearm during and in relation to one or more of the crimes charged in Count One, Two or Three.” Jury Instructions, pp. 28-29; 2R425-26 (emphasis added).
By this instruction, the trial court invited the jury to return a verdict of guilty not based any actus reus element of the offense defined in 18 U.S.C. Section 924(c)(1)(A), but on a mens rea element disconnected from any actus reus specified in the offense."
Here Olson and Brewer get to the real heart of the matter :
" And by instructing the jury that the offenses charged in Counts I, II, and III were “crimes of violence,” and that it only need to find that the “firearm” had “some purpose, role, or effect with respect to those crimes, the trial court deprived Defendants of their constitutional right to have the jury decide whether the Defendants’ “use” or “carrying” of the firearms was “during and in relation to” a “crime of violence” or “during and in relation to” their employment as Border Patrol Agents. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)"
Sorry about the length of this post. But these are critical arguments.
An argument can be made that the BP agents have yet to be charged with actually violating statute 924(c)(1)(A).
Brewer’s arguments are brilliant. That is the same brief I’ve posted that is hosted on Gun Owners Of America’s website:
http://www.gunowners.com/amicus10.pdf
It’s now apparent that Judge Cardone was in over her head...
Maybe she can be transferred back to family court where she’ll have time
to resume teaching exercise classes at the gym. ;-)
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