From: [c d t] at [sw.stratus.com] (C. D. Tavares)
Newsgroups: talk.politics.guns,talk.politics.misc,alt.politics.clinton
Subject: Re: Waco - one more time.  (Was the 4th Admend...)
Date: 23 Feb 1995 01:29:46 GMT

In article <3i7v7o$[10 u] at [wanda.pond.com]>, [r--so--o] at [wanda.pond.com] (Matthew Russotto) writes:
> In article <[scook 393 00 DB 3 E 7 C] at [scook.ihhsr.fsu.edu]>,
> Stephen Cook <[s--o--k] at [scook.ihhsr.fsu.edu]> wrote:

> }>I've yet to hear any serious evidence of 'illegal" firearms activity.
> }>Lotta froo-froo about shooting federal agents, etc, etc, etc, but no
> }>evidence of illegal weapon manufacturing.

> }   I suppose that the survivors serving jail time are victims of a miscarriage 
> }of justice? 

> Yes.  Sentenced to 30 years for using weapons they did not possess in the
> furtherance of a conspiracy which did not exist, thanks to faulty jury
> instructions and the concept of 'constructive possession'.

In fact, the jurors themselves maintain that their verdict was used
in a way that they never meant it to be used.

All 11 defendants were acquitted of murder.  Seven were found guilty 
on lesser charges, while four were cleared completely.

But there was an inconsistency in the verdict.  From the Memorandum
Opinion and Order:

  On Saturday, February 26, 1994, the jury in this case returned
 its verdicts, finding all Defendants not guilty on Count One of
 the Indictment -- Conspiracy to Murder Federal Officers, but
 finding seven (7) of the Defendants, Brad Eugene Branch, Kevin
 Whitecliff, Jaime Castillo, Livingstone Fagan, Graeme Leonard
 Craddock, Renos Avraam, and Ruth Ottman Riddle, guilty of
 Count Three -- Carrying a Firearm During or in Relation to a
 Crime of Violence. With regard to Count Three, the Court
 instructed the jury as follows:
 
      For you to find a Defendant guilty of this crime, you
     must be convinced that the government has proved each of
     the following beyond a reasonable doubt:

      _First_:  That the Defendant under consideration committed
      the crime alleged in Count One of the Indictment. I instruct
      you that Conspiracy to Murder Federal Officers and
      Employees of the United States is a crime of violence; and
 
      _Second_:  That the Defendant under consideration knowingly
      used or carried a firearm during and in relation to the
      Defendant's commission of the crime alleged in Count One of
      the Indictment.
 
  The Court, noting that these verdicts were inconsistent, called
 a bench conference. During the bench conference, the Court
 concluded that these verdicts were inconsistent, but the Court
 refused to send the jury back to reconcile the verdicts, or to
 instruct a not guilty verdict on Count Three. The verdict was
 then published as answered by the jury. After the jury was
 discharged, the following colloquy took place:
 
    MR. KEARNEY:  Also, Judge, I don't know, is there going to
    be some further action as to the finding on Count Three?
 
    THE COURT:  I'll enter a written order.
 
    MR. KEARNEY:  Okay. I'm not sure what that -- I'm not sure
    what the Order is -- I misunderstood, I guess, of what the
    Court was going to do. May I approach the bench.

    THE COURT:  You don't need to. The guilty finding as to Count
    Three will have to be set aside, because of the necessity, the
    jury could not find the defendant guilty of that offense
    without first having found that defendant [guilty] of the
    conspiracy offense alleged in Count One, and the jury found
    all defendants not guilty of that offense. So, that portion of
    the verdict simply cannot stand, there seemed to be no point
    in asking the jury to retire and reconsider it, because the
    only decision they would have made was to change that finding
    to not guilty. So, the Court will set that finding aside.

The prosecutors accepted this judgement.  This was February 27.

Lo and behold, on March 9, Judge Smith reversed himself and reinstated
the charges, stating he "never expressly set aside" those charges.
(Defense attorney Joe Turner argued, "How do you reinstate something
unless you set it aside previously?")  Smith wrote that he "did not
intend to set the verdict on Count Three aside at that time," claiming
that it was the jury's right and privilege to return an inconsistent
verdict for reasons unknown to anybody but themselves.

Why the 30-year sentence for a 10-year-max crime?

  In _United States v. Masters_, 978 F.2d 281 (7th Cir. 1992),
 _cert. denied_, ___ U.S. ___, ___S.Ct. ___, 124 L.Ed2d 245
 (1993), the Seventh Circuit similarly held, noting that judges
 may take other crimes into account when sentencing even when the
 defendant has been acquitted of those crimes: "An acquittal means
 that the charge was not proven beyond a reasonable doubt; it does
 not mean that the defendant didn't do it." _Masters_ at 286.

So in short, all inconsistencies are to be resolved in whatever
fashion favors the government's case.

Welcome to the Next Level.
-- 

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