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web posted June 12, 2000

Five Branch Davidians' sentences set aside

The Supreme Court on June 5 set aside the lengthy prison sentences given to five Branch Davidians who survived a 1993 siege at the sect's Waco, Texas, compound. The court ruled that a federal judge misused an anti-gun law to increase their punishment.

The unanimous decision makes it harder for courts to find lawbreakers deserve extra time behind bars because they used or carried machine guns during their crimes.

A federal law subjects anyone who used or carried a "firearm" during a violent or drug-related crime to five years in prison. The term jumps to 30 years for anyone who used or carried a "machine gun" during that same crime.

Federal appeals courts had split on whether determining use of a machine gun is an element of the offense a jury must find beyond a reasonable doubt, or merely a sentencing factor a judge gets to determine by a preponderance of the evidence.

The nation's highest court said use of a firearm must be determined by the jury.

"We believe Congress intended the firearm type-related words it used ... to refer to an element of a separate, aggravated crime," Justice Stephen G. Breyer wrote for the court.

Five Davidians were convicted in 1994 in the killings of four federal agents during a botched Bureau of Alcohol, Tobacco and Firearms raid on the compound outside Waco.

The raid led to a 51-day standoff that ended when flames swept through the compound. David Koresh and some 80 followers died during the inferno, some from the fire and others from gunshot wounds.

A federal jury acquitted the five Davidians of murder and conspiracy-to-murder charges but convicted them of voluntary manslaughter. Each was sentenced to 10 years in prison for that conviction. The jury also found them guilty of using firearms.

The presiding judge tacked on 30-year sentences for four of them and a 10-year sentence for the fifth after finding that each had used a machine gun.

Renos Avraam, Brad Eugene Branch, Jaime Castillo and Kevin Whitecliff drew the 30-year sentences; Graeme Craddock the 10-year term. Craddock also was sentenced to a consecutive 10 years for using a hand grenade.

The jury never had been asked to determine what types of firearms the five had used. The judge made that determination during sentencing.

In appealing their sentences, the Davidians relied heavily on a decision in which the justices last year said carjackers cannot be given tougher sentences unless a jury, not a judge, determines that victims were seriously injured during that federal crime.

The case presumably will return to a federal trial court where new sentencing hearings will be conducted. The decision did not suggest appropriate new sentences.

Chilean court strips Pinochet of immunity

An appellate court on June 5 stripped Gen. Augusto Pinochet, Chile's former president, of his immunity from prosecution.

The court voted 13-9 for the action, which had been expected.

Pinochet's lawyers plan to appeal the verdict at the Supreme Court level, a process that is expected to take weeks.

Since Pinochet's return to Chile in March from house arrest in Britain, his defense team has sought to postpone the hearings by citing his ill health.

In 1998, Pinochet was detained in Britain on a Spanish court's warrant on human rights charges, but British Home Secretary Jack Straw said independent medical examinations showed Pinochet was too ill to undergo a trial.

The civilian government that replaced Pinochet's regime says more than 3,000 people were killed or disappeared during his rule.

Hugo Gutierrez, a lawyer sponsoring several criminal complaints against Pinochet, said court officials told him the ruling would be made public and official Monday afternoon.

The court's decision, though secret, was leaked to the press and lawyers.

Pinochet's lead attorney, Pablo Rodriguez, has said the appeal will be based on "General Pinochet's total innocence of the charges against him."

According to an official report compiled by the civilian government that succeeded Pinochet, 3,191 people died or disappeared under his 1973-90 regime. Pinochet faces 110 lawsuits stemming from that era.

Judge Juan Guzman, who is probing the complaints, picked one of the them, a case known as "the Caravan of Death," to seek the revocation of Pinochet's immunity and his eventual trial.

The caravan was a military group that toured several cities soon after the 1973 coup that brought Pinochet to power, dragging 75 prisoners from jail and executing them. Nineteen victims remain unaccounted for, which Guzman considers "a case of ongoing kidnapping."

That, he said, means that a crime is still being committed, thus leaving the case uncovered by a decree issued by Pinochet declaring an amnesty for any abuses committed between 1973 and 1978.

After visiting Pinochet the week before, right-wing Sen. Hernan Larrain said the general "is prepared to accept whatever Chile has reserved for him."

Pinochet was reportedly awaiting the official ruling at one of his countryside residences near Santiago.

'I never purposely pointed my weapon at Elian,' federal agent says

The federal agent who was photographed aiming his weapon in the direction of Elian Gonzalez when the 6-year-old boy was seized says he never purposely pointed his weapon at the child during the April 22 operation at the home in Miami of the boy's great-uncle.

The unnamed Border Patrol agent's detailed written account of his pre-dawn confrontation with Elian and the man holding the child, Donato Dalrymple, near a bedroom closet was one of six "after action" reports made public by the Justice Department on June 5.

"The widely published picture of this encounter depicts the search technique I was using, but it does not present a clear rendition of the entire event," said the report written by a tactical team member identified only as BORTAC (Border Patrol Tactical Unit) Team Member 3.

"While my weapon was being pointed in the general direction I was searching, I never purposely pointed my weapon at Elian Gonzalez or Mr. Dalrymple," the agent wrote. "The 'third eye' technique points the weapon in the general direction that the weapon handler is looking, and I was looking into the closet to determine whether or not a threat existed. Immediately upon determining that no threat existed in the closet, I transitioned to a defensive posture."

An executive summary released with the reports contains "debriefing results" that are consistent with claims made by Immigration and Naturalization Service and Border Patrol officials following the operation.

The reports were written based on debriefings of the six-member BORTAC unit at the agency's El Paso, Texas, headquarters from April 26 through April 29, just days after the raid.

The summary says the statements by the team members interviewed individually contain only slight variations relating to the timing of the instruction to place weapons on "safe," and descriptions of the events at the front door of the Gonzalez home.

Other conclusions reached during the debriefings included:

  • No profanity was used by team members during the operation.
  • No one on the team threatened to shoot anyone during the operation.
  • Team members made no threats to use force against anyone in the home.
  • Marisleysis Gonzalez, Elian's 21-year-old cousin, was not touched in any way during the operation.
  • No one inside the Gonzalez home was pushed to the floor during the operation.
  • No one inside the Gonzalez home was held to the floor during the operation.
  • The video cameraman inside the Gonzalez home was not touched in any way by the entry team. Contact with him was limited to one team member, who gave him a verbal command to remain seated as the team passed by the chair that the cameraman occupied.
  • No force was required to remove Elian from Dalrymple's arms. One team member was controlling Dalrymple with one hand placed on Dalrymple's chest, while another team member reached for Elian. Dalrymple released Elian at the same time that the team member placed his hands on Elian.
  • No team member struck anyone with a weapon during the operation.
  • No chemical irritants of any sort were deployed by the Border Patrol team that went inside the house during the operation. (That may not apply to the INS agents deployed outside the house.)
  • No chemical irritants were deployed inside the house by anyone during the operation. The team members are certain of this because they were not wearing gas masks.
  • Three doors were breached during the operation. All were determined to be locked before the breaches, and occupants were given the opportunity to open the doors.
  • Each team member was using an MP-5 carbine as his primary weapon. Each member was also carrying a standard-issue .40-caliber Beretta pistol, an ASP tactical baton, and an OC canister. The team members had only their MP-5 carbines in their hands during the operation.
  • The fire selector lever on the MP-5 depicted in photographs published by The Washington Post on April 25 is positively in the safe position. It is virtually impossible to fire the weapon either inadvertently or purposely with the selector lever in the safe position.

Many of these conclusions have been disputed by members of Lazaro Gonzalez' family and friends present during the raid. The Gonzalez family has charged the agents with causing extensive physical damage, pushing residents in the house and intimidating them.

Judge orders White House to produce e-mails

A federal judge has ordered the White House to produce e-mails within 20 days regarding FBI files, and information related to Linda Tripp and Kathleen Willey.

U.S. District Court Judge Royce Lamberth ordered the e-mails produced in the case of hundreds of appointees from the Reagan and Bush administrations whose FBI background files were gathered by the Clinton White House. The judge said his order pertains to e-mails of President Clinton, first lady Hillary Rodham Clinton, Linda Tripp, Vincent Foster and 29 others.

The conservative group Judicial Watch is seeking the e-mails in a lawsuit accusing the Clinton administration of attacking its political enemies by using confidential material protected by the Privacy Act.

The group had been seeking the e-mails of 47 individuals and the use of 36 search terms. In his decision, Lamberth narrowed that to 33 individuals and 20 search terms, including "personnel security," "FBI files" and "Willey."

"The EOP (Executive Office of the President) shall produce all relevant e-mails to the plaintiffs within 20 days of this date," Lamberth said in his ruling.

He said a later order would deal with the approximately 100 000 e-mails that were not archived and are being reconstructed from computer backup records. These missing e-mails had been sought by congressional committees, the Justice Department and Independent Counsel Ken Starr.

Judicial Watch said it was pleased with Lamberth's ruling on June 5.

"Importantly, the Clinton-Gore White House has 20 days to produce these documents," Judicial Watch chairman and general counsel Larry Klayman said.

In addition to the "Filegate" controversy, the judge is allowing Judicial Watch to probe two side issues -- the use of information from Linda Tripp's personnel file at the Pentagon and the White House's release of personal letters of presidential accuser Kathleen Willey.

NCC president launches legal challenge to Canadian gag law

National Citizens' Coalition president Stephen Harper told a news conference on June 7 that he is personally launching a constitutional court challenge to Bill C-2, the federal government's election gag law.

"Prime Minister Jean Chretien's gag law is an affront to political free speech," says Harper. "I am confident the courts will kill it and rule that gag laws have no place in a free and democratic society."

Bill C-2 became law the week before when it passed the Senate and received Royal Assent. The new law now makes it illegal for private citizens or groups to spend more than $150,000 of their own money to comment on political parties, candidates or issues during federal elections. That works out to no more than $500 per constituency.

The law would also restrict the media's ability to publicize public opinion polls.

"The obvious intent of the gag law is to stifle independent voices at election time," says Harper. "The government wants to shut out and shut up groups like the NCC." Harper notes that whatever legal justification the government had for Bill C-2 went out the window thanks to a recent ruling by the British Columbia Supreme Court.

"In February the B.C. Supreme Court shot down a provincial gag law quite similar to Bill C-2", says Harper. "In its ruling the court totally rejected the jurisprudence which the Liberals have used to defend the legality of their gag law." Harper also points out that the NCC, which helped financed the B.C. case, has twice before challenged election gag laws in the courts and won each time.

"Given the poor track record of gag laws in the courts, the Chretien government should have dropped Bill C-2 long ago," says Harper. "Unfortunately they've decided they can just use an unlimited amount of taxpayers' money to litigate this issue over and over again in the courts."

The NCC president says his lawyer, Alan Hunter of the law firm Gowlings, will file legal papers challenging the gag law at the Alberta Court of Queen's Bench in Calgary at noon Alberta time.

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