Thursday, July 26, 2007

Games Prosecutors Play

The Ramos/Compean case gets even more strange.

Now, according to an amicus filing, the US Attorney may have used a "sentencing guideline" to manufacture a criminal offense.

[According to] a copy of an amicus curiae ("friend of the court") legal brief filed by Reps. Walter Jones (R-N.C.), Virgil Goode (R-Va.), and Ted Poe (R-Texas) in the former agents' appeal before the Fifth Circuit Court in New Orleans. They accuse the prosecution of "creating a purported criminal offense never enacted into law by Congress," and of charging Ramos and Compean with a "non-existent crime."

Simply discharging a firearm near a violent crime is not illegal, the brief argued, saying the law they were convicted under is not a law at all, but a sentencing factor used to help a jury determine jail time after a conviction.

As you might expect, the relevant statute's wording is sloppy (Congress wrote it...that's a hint.)

The brief argued that, for a 10-year sentence, a defendant must be convicted under the specific terms laid out in section 924(c)(1)(a) (see section).

This provision is applicable, the section says, to "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm ..."

If, and only if, these conditions apply can a defendant be sentenced to ten years in prison for the "discharge" of a firearm.The brief argued that the shooting of drug smuggler Osvaldo Aldrete-Davila was not "in relation to" the drug crime because Ramos and Compean were themselves not participants in the drug crime.

Now you and I might think that the 'use/carry of a firearm during/in re a crime of violence or drug trafficking' applies ONLY to the perpetrators of the crime.

Not according to the Prosecutor, if this amicus is credible. The way this deal came down, anybody using a weapon in those circumstances is "a criminal" and subject to a 10-year sentence.

There's a screw loose here, someplace.

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