Posted on 07/28/2008 11:46:09 AM PDT by Nachum
In a complex decision, the Fifth Circuit Court of Appeals affirmed the major counts against former Border Patrol agents Ignacio Ramos and Jose Compean but reversed the obstruction of justice counts and sent the case back to a lower court for resentencing.
(Excerpt) Read more at worldnetdaily.com ...
As a matter of fact, you have the 5th Ciruit staring you in the face and saying, “next.”
“The question thus raised is whether the indictment’s use of the term “discharges” instead of the statutory word “uses” suffices to charge a crime under § 924(c)(1)(A). “We have previously stated that although an indictment must inform the defendant of every element of the crime of which he is accused, an indictment need not track statutory language.” United States v. Boyd, 885 F.2d 246, 249 (5th Cir. 1989). An indictment need not precisely track statutory language because the “basic purpose” of an indictment is “to inform a defendant of the charge against him.” Hoover, 467 F.3d at 499. Thus, “‘[t]o be sufficient, an indictment must conform to minimal constitutional standards, standards that are met where the indictment alleges every element of the crime charged and in such a way as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in a subsequent proceeding.’” Id. (quoting United States v. Partida, 385 F.3d 546, 554 (5th Cir. 2004)). Those minimal constitutional standards therefore do “‘not compel a ritual of words.’ The validity of an indictment is governed by practical, not technical considerations.” United States v. Crow, 164 F.3d 229, 235 (5th Cir. 1999)(internal citation omitted) (quoting United States v. Devoll, 39 F.3d 575, 579 (5th Cir. 1994)).
Here, the term “discharge” is but a specific manner of use of the broad term “use.” Indeed, in considering the various meanings of “use,” the Supreme Court interpreted that term to include, “most obviously, firing or attempting to fire a firearm.” Bailey v. United States, 516 U.S. 137, 148 (1995). Defendants have not demonstrated how employing the term “discharge” failed to provide notice or otherwise charge a crime. There is no plain error here.”
The law only applies to people who commit crimes with their guns. I agree with a law that makes the use of a gun in a crime an additional crime, and punishes more for it — because it gives an incentive for a criminal to NOT carry a gun, and a further incentive not to pull it out if he DOES carry, and a further incentive not to USE it if he does pull it out.
I disagree with mandatory sentences, because it prevents judges from using discretion based on the merits of an individual case. But that is a minority opinion in conservative circles, where most people worry that liberal judges will essentially “un-write” criminal law by refusing to put people in jail for convictions.
I think you take the time to appoint good people as judges, and then live with the fact that sometimes they will let people go who you think should be held in jail.
Maybe a reasonable change to this particular law would be that, if your job requires a gun, and if the evidence indicates that, at the time the “crime” commenced, you were already carrying your weapon because of your job, the first 5-year term should be waived.
In other words, if you normally carry a gun, part of the prosecution must prove that in the case of your crime, you chose to carry your weapon BECAUSE you intended to commit a crime.
That would save 5 years for officers who decide to commit crimes DURING their shift, but still impose it against officers who put the weapon in intending to commit a crime.
In this case, it would knock 5 years off each officer, since nobody believes they intended to commit a crime when they started their day.
You could use the same application for the “brandish the weapon” clause — if the officer had reason to pull his weapon, he can’t be charged on that point. I don’t think that would have helped these two, but I can imagine a case where the officers draw a weapon because the criminal has one, and then the criminal puts his weapon down, and then the officer shoot them anyway.
In fact, this is close to as conservative a panel as you will get, even on the 5th circuit — certainly to the right of the center of that fairly conservative court.
The defendant’s appeal specifically raised the issue that the indictment said “discharge”, while the statute says “use”.
The Appeals court dismissed that complaint, noting that discharge is a type of use, and that prior court rulings had found discharge as a type of use. Also they noted the indictment is to give the defendants a reasonable idea of what they are charged with, and does not have to repeat the terms exactly as written in the law.
So while you may believe this makes the conviction bogus, the three judges on the court of appeals disagree with you.
They may have done much better with a liberal sitting. Liberals are much more likely to ignore the law and go by what they feel.
Thanks, fits my understanding but in admirably fewer words.
Two of these "liberal judges" (including the one who wrote the opinion) were appointed to the Court of Appeals by Ronald Reagan. The third member of the panel was appointed a trial judge by Ronald Reagan, and promoted to the Court of Appeals by George W. Bush.
In other words, Johnny Sutton and Company started this ball rolling by bringing charges they clearly did not have to and, given past rulings, Sutton&Co is therefore responsible for this travesty despite Johnny Sutton's baseless assertions that he had no choice and it is all Congress's fault given mandatory sentencing.Here, whether to prosecute defendants Ramos and Compean under this statute was a matter of prosecutorial discretion; once a prosecutor decides to prosecute a law enforcement officer who has similarly used his weapon against a fleeing, suspected felon, the officer may stand trial for a violation of § 924(c). We can surely debate whether there is an intuitive distinction between a violent criminal or a drug trafficker using a gun during the course of their trade and a police officer using a gun against a fleeing felon; however, neither the statute nor the cases make such a distinction.
Regardless, it's time for Congress to get busy and clarify the language in the law so that law enforcement officers aren't hindered in performing their duties.
Send some moral support what ever happens.
Ignacio Ramos #58079-180
FCI Phoenix
Federal Correctional Institution
37910 N. 45th Avenue
Phoenix, AZ 85086
Jose Compean #58080180
FCI Elkton
PO Box 10
Lisbon, OH 44432
I don’t think people who commit crimes with guns care that much about an extra 5 or 10 years they could get if they get caught. And even if that is a concern the government can already use the fact that a defendant used a firearm in the commission of an offense as a factor setting the sentence. For Instance, if the sentence range for a crime is is 5 to 20 years the judge can impose a sentence closer to 20 years and cite the firearm as the reason for the harsher sentence. This statute these officers were convicted under is unnecessary. It’s superfluous, redundant and bound to cause bad results like what we have seen here.
This is not good.
Any proper court would have reversed all counts, particularly with the present state of the facts Re: the ‘witness.’
The opinion has a "hot potato" look to it...
I haven’t read the opinion but affirming some and if part of that some was the mandatory 10 yr sentence then they haven’t really gained a lot. The sentences over an above the mandatory 10 yr was one yr and one day for Ramos and two years for Compean all of which was to be served at the same time with the 10 yrs. Ramos has completed that time and Compean will sometime in Jan. 09.
This time, it is the courts. Its the allowance and disallowance of 'evidence' (using the term loosely) that twisted this case. It was pure politics, and no jurisprudence.
Pursuing a known drug smuggler to bring him to justice.
Thanks for the input.
I will presume that you have read the document; what is remaining that prevents you from understanding that the agents were firing their weapons in performance of their sworn duty, and thus did not fire their weapons in the commission of a crime? Are you really that twisted?
The prosecution of this case was the crime.
I agree with you.
The case against Ramos and Compean is more than a crime.
ITs a political lynching, orchestrated by that outstanding Panderer to the Mexican Government, Jorge El Segundo and his cronies in the administration. Sutton was merely the tool. The Mexican Government wanted an example made of two American citizens who forgot their ancestry was Mexican and whose primary concern was the defense of America and American citizens.
And the Panderer in the White House saw this was done and apparently continues to see thaqt this miscarriage of justice continues.
I hope Ramos and Compean carry their case to SCOTUS and the Supremes kick it out and slap Jorge across the face in the process.
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