High court reviews Davidians' sentences

Finding on use of machine guns at issue

The Dallas Morning News, April 25, 2000
By David Jackson

WASHINGTON - The Supreme Court on Monday questioned the way a judge sentenced Branch Davidians who are seeking to cut 25 years from their prison terms for the deadly 1993 raid near Waco.

The justices will decide whether the judge or jury should have decided whether machine guns were involved in the deaths of four agents with the Bureau of Alcohol, Tobacco and Firearms.

U.S. District Judge Walter Smith included that finding in sentencing four defendants to a total of 40 years in prison and a fifth to 20 years. The offenses included voluntary manslaughter and use of a machine gun during a violent crime.

In appealing to the Supreme Court, a defense attorney said the jury never got the chance to decide whether machine guns were used.

That finding by the judge constituted 30 years of the 40-year prison sentences; crimes with unspecified firearms normally require only five years, which would reduce the sentences to 15 years.

"Firearm type is frequently contested at trial, and it's usually an issue for the jury," attorney Stephen P. Halbrook told the court during an hourlong hearing.

A Justice Department attorney said Congress gave judges wide discretion in applying federal sentencing guidelines.

"There's strong evidence of the use of machine guns and destructive devices," assistant attorney general James K. Robinson said. The Supreme Court will decide the case by early July.

If the justices side with the defendants, all five would be eligible for release in 2008; otherwise, four would serve until 2033 and a fifth until 2013.

"More than that, it has to do with a very important part of the Bill of Rights, and that's the right to a jury trial," Mr. Halbrook said. 51-day standoff

The gunbattle began a 51-day standoff that ended in fire on April 19, 1993. More than 80 Davidians died during the fire, which is the subject of a pending lawsuit, congressional scrutiny and a criminal investigation under the direction of former Sen. John Danforth, R-Mo.

But the Supreme Court justices didn't mention those controversies, focusing instead on the use of federal sentencing guidelines. The judge used those guidelines to sentence Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam, Kevin A. Whitecliff and Graeme Leonard Craddock.

Judge Smith sentenced the first four to 10 years for aiding and abetting voluntary manslaughter and another 30 years for using machine guns during a violent crime. He also sentenced Mr. Craddock to 10 years for possession of a grenade and, in a downward departure of the federal guidelines, 10 years for the machine-gun offense.

Acquitted

A jury acquitted the Branch Davidian defendants of the major charges: conspiracy to murder federal agents or aiding and abetting the murder of federal agents.

Mr. Halbrook said prosecutors urged the judge to make machine guns part of the sentencing to "jack up" punishment for the lesser convictions. "It was never really part of the case until it came around on sentencing," Mr. Halbrook said.

Sarah Bain, the jury forewoman during the 1994 trial, flew to Washington for the Supreme Court hearing as a show of support for the defendants. "We were absolutely shocked with the severity of the judge's augmentation," Ms. Bain said after the hearing. "We thought it would be a slap-on-the-wrist sentence."

The Justice Department lawyer said Congress did not require that juries decide what types of weapons are used in crimes. "It is a sentencing factor to be determined by the court," Mr. Robinson said.

Questioning

The justices asked more questions of the government lawyer. Chief Justice William Rehnquist questioned whether certain factual findings can be made after a jury verdict, saying, "The tail can't wag the dog."

Noting the difference between the five-year standard for offenses with "firearms" and the 30-year standard for those with "machine guns," Justice Antonin Scalia said, "That's a long tail."

The justices also noted, however, that the types of weapons involved in the shootout had to be discussed during testimony at trial.

"Somebody thought it was more likely than not that the people had machine guns," Justice Scalia said.

Justice Sandra Day O'Connor, however, wondered how that related to the individual defendants.

"The evidence isn't all clear linking this particular individual with a machine gun," Justice O'Connor said. "And we don't know if a jury would have been able to reach that determination."