Posted on 01/19/2009 9:58:40 AM PST by E.G.C.
Edited on 01/19/2009 10:46:59 AM PST by Admin Moderator. [history]
I agree with you. The main problem with this case was the law that requires a mandatory minimum of 10 years for using a firearm in connection with a federal crime. At the very least, there should be an explicit exemption for LEOs, though I'm not a fan of manadatory minimums in general and wouldn't mind seeing it repealed.
A lot of people blamed Sutton for the excessive sentence, but it's not his fault. It's Congress's fault for writing the statute that way.
Unfortunately, this has gotten lost and I fear more LEO's will get treated similarly to these guys in the future.
We are entering a storm which will clear the decks of nonessential personnel.
The ability of the dark matter of the political universe [formerly known as the silent majority] to move this president from his I-shall-not-be-moved immigration pose to commute Ramos and Compean's sentences demonstrates the power.
It's there for tax cuts, drilling, immigration, preemptive force against the islamokamikazi.
We have only to use it.
I hate the DU, they are like rabid bats in there!
That’s true.. they can appeal. I hope neither decide to return to being a Border Patrol agent. I think they at least need to move from Texas, one of their homes was broken into per one of the wives on Glenn Beck’s show yesterday.
A lot of people blamed Sutton for the excessive sentence, but it's not his fault. It's Congress's fault for writing the statute that way.
The statute is for people who "use, carry, or possess," a firearm in relation to a crime of violence. Sutton deliberately altered the language of the statute and replaced the language in the statute with language from the sentencing guidelines and charged them with "illegally discharging" a firearm in relation to a crime a violence. Thus, he created a purported criminal offense which was never actually enacted into law by Congress. There have been rulings by the appellate courts that have said that prosecutors are not supposed to do this kind of thing with the staute.
Sutton demanded strict adherence to the wording of the statute because it allowed him to use the statute in a way that was never intended by Congress while simultaneously arguing that he be allowed to alter the wording of the statute because that also allowed him to use the statute in a way that was never intended by Congress.
It's clearly a case of eating your cake and having it too.
Sutton altered (or misstated) the statute because it obviously facilitated his conviction of the agents. LEO's are specifically required to carry and possess firearms as part of their duties. They have no choice. Again, this was the reason Sutton misstated the wording of the law to the jurors.
In order to justify the conviction under the agents, Mark Stelmach (Sutton's rep) told the Fifth Circuit that an LEO could still be charged with the 924-c statute if he became overzealous in apprehending a criminal by simple virtue of the fact that he is in"possession" of, or "carrying" a gun. So, in other words, even if an officer never removes his gun from his holster, he can still be charged with the 924-c statute simply because he happens to be in "possession" of a firearm. This is what Stelmach argued. And, frankly, he had to, - in order to justify the use of the statute against the agents.
Needless to say, that's insane. And, sadly, the Fifth Circuit flinched when it was gut check time. They dropped the ball, big time.
The Jurors also were never told of the ten year mandatories connected with a conviction under the 924-c. If they had been, they probably wouldn't have found them guilty under those charges. Several jurors have come forward and said as much.
"use, carry, or possess," : You failed to bold use. Seems they used their weapons if I remember correctly.
Yup, which is exactly what these guys did.
Sutton deliberately altered the language of the statute and replaced the language in the statute with language from the sentencing guidelines and charged them with "illegally discharging" a firearm in relation to a crime a violence.
Sutton can't alter the language of any statute. Only Congress can do that.
The most he can do is misrepresent it in his arguments, and you seem to be claiming he did this. Unfortunately, neither the judge nor the defense counsel seem to agree with you, as neither attempted to correct this alleged misrepresentation during the trial, as they both had ample opportunity to do.
Face it. You're grasping at straws.
I don’t think he went far enough. At most Ramos and Compean were guilty of misdemeanor neglect - trivial compared to their convictions. They were convicted based upon the probable perjury of a convicted drug smuggler, aided and abetted for political reasons through the misconduct of prosecutor Johnny Sutton. They should have been pardoned or at least had their conviction reduced to misdemeanor negligence.
But there is a big difference between attempting to convict two LEO's for using a firearm as as opposed while attempting to apprehend a criminal (LEO's are authorized to use the firearms they are issued by their Departments) as opposed to "illegally discharging" a firearm. Again, this is why Sutton altered the statute in the first place.
Then the convictions should be reversed on appeal but they weren't and the 5th isn't known as a liberal court.
And being a "conservative" doesn't make you immune from making mistakes or even boneheaded decisions. History has proven that in spades.
Last I checked, conservatives were human as well.
Regardless of how you, I or the appeals courts view the application of the law that congress enacted they are now getting out and can persue their appeals to overturn the convictions and clear their name. Otherwise they stand convicted by a jury charged with hearing the case.
Have a nice day and overtime we’ll see how his plays out. I suspect both Ramos/Compean are happy to see a day certain that they can be out of prison and with their families and starting to establish a future again.
Yup, which is exactly what these guys did.
Except that LEO's are specifically required to carry firearms are part of their duties and are authorized to use those firearms ( that's why they issued the firearms in the first place ). This was problematic for Sutton which is precisely why he changed the wording of the statute to facilitate the conviction of the agents.
Sutton can't alter the language of any statute. Only Congress can do that.
Agreed. Well, at least in theory. But that doesn't stop some prosecutors from misstating the original law in court. And Sutton did alter the wording of the statute. The agents were not actually convicted of "using", or "carrying", a firearm in relation to a crime of violence, but of "illegally discharging" a firearm. The particular wording of a statute can make the difference between a "guilty" or "not guilty" verdict.
Judge Cardone was in over her head. Her she had been working as a Judge in Family Court for years and was a relative newcomer to the Federal Bench.
And there have been prosecutors that actually have altered the original wording of the 924-c statute to obtain convictions in court. But the courts have frowned upon this sort of thing. See United States v. Barton, Harris v. United States, and even United States v. McGilberry. The Supreme Court has upheld this view of the law ( in Harris ) where it ruled that the 924(c) statute did not define "discharge" of a firearm as a separate offense, but only as a "sentencing factor" to be considered by the trial judge after conviction.
There were precedents that would have fully supported the overturning of the convictions under the 924-c law but they didn't do it. That's what made the Fifth Circuit's ruling all the more tragic.
Face it. You're grasping at straws.
Nope, just stating the truth. This case was a miscarriage of justice from the beginning. Deal with it.
LOL. I see, so illegally discharging a firearm doesn't count as using it?
It's the other way around. Does the "use" of a firearm, by an LEO against a someone committing a criminal offense, constitute an "illegal discharge"...? An LEO can discharge his firearm without doing so illegally. Officers are authorized to do this, and they do it every single day.
And because the courts have ruled that the "discharge" of a firearm does not constitute a separate crime or even the element of a crime, merely a sentencing guideline.
Look at it this way : once you have found the agents not guilty of attempted murder (as this jury decided), then it obviously becomes far more difficult to convict them of "using" a firearm in relation to a "crime".
This is because the "not guilty" verdict is a declaration by the jury that the discharging of the officers' firearms was justified under the circumstances and, thus, still fell within the parameters of the sidearms' authorized use.
Thus, it is logical to deduce that their actions do not contsitutute a violation of the 924(c) statute.
The word "use" requires that the jurors take a far more expansive view of the entire circumstances, whereas the word "discharge", narrowly focuses attention upon the firing of the gun itself.
If we are to treat our LEO's fairly, while judging their actions, then we have to take a far more comprehensive view of the circumstances in question.
I'm all for a border fence.
That is a problem right there if that is indeed what happened.
I still stand behind what I have said from the begining.
Punishment was in order, jail time was not.
then I agree with you that it is a serious abuse of power, but probably not deserving of jail time.
Regardless, procedures were not followed correctly, something unacceptable for anyone in law enforcement, especially when their job is to prevent people from breaking "procedures" (aka laws).
I feel they should have punished, lost their jobs, but the massive prison sentence was not acceptable.
I will not jump on the support the border agents bandwagon at all costs like some people want to do.
I agree. And they were framed by Johnny Sutton who is merely another Nifong.
Depends on the circumstances. If the suspect is unarmed and not posing an immediate danger to anyone, as in this case, yes.
And because the courts have ruled that the "discharge" of a firearm does not constitute a separate crime or even the element of a crime, merely a sentencing guideline.
The language of the statute is clear, your verbal gymanstics not withstanding, and both a Federal Judge and appeals court agree with me, not you.
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