Sunday, September 12, 1999
Appeal targets 3-strike law
BY BEN KAUFMAN
The Cincinnati Enquirer
When criminals face mandatory life sentences under the federal “three strikes” law, they often claim earlier crimes do not qualify as strikes.
If prior misdeeds weren't “serious violent felonies,” they may not qualify as strikes. If they don't, defendants must be sentenced only for current crimes.
But when earlier convictions qualify as strikes, prison doors slam forever.
Johnny E. Gatewood was sentenced to mandatory life in 1997 but his appeal took unpredictable turns.
Rather than claim only that his convictions for armed robbery in 1971 and aggravated robbery in 1976 did not qualify as strikes, he attacked the law itself, saying it violated his 5th Amendment right to due process:
• Mr. Gatewood — rather than the government — had to prove that prior convictions did not qualify as the first two strikes.
• It could be impossible to prove his case a quarter-century later by the tough standard of “clear and convincing” evidence.
He said the burden of proof should be on the government because it was prosecuting and arguing that he was vulnerable to the 3-strike penalty.
Further, Mr. Gatewood said, “clear and convincing evidence” was too high a standard to demand of a defendant and the simpler “prepon derance of the evidence” should suffice.
Sixth Circuit Judges Damon Keith, Gilbert S. Merritt and Martha Craig Daughtrey said he was right about the burden of proof; it belongs to the government, not the defendant.
That victory was tempered by their next decision. The judges agreed that a preponderance of evidence should suffice but because of their previous ruling, this one lightened the prosecutor's burden.
They sent Mr. Gatewood's 1997 conviction for robbery and kidnapping back to U.S. District Judge Jon Phipps McCalla in Memphis for resentencing.
If prosecutors prove the earlier convictions were serious violent felonies, Judge McCalla can reimpose the life sentence. Otherwise, Mr. Gatewood must be given the shorter sentence required by federal guidelines for robbery and kidnapping.
To be a first strike, prosecutors must prove Mr. Gatewood used a firearm or other dangerous weapon in the 1971 armed robbery.
For a second strike, prosecutors must prove the 1976 aggravated robbery resulted “in death or serious bodily injury.”
In his appeal, Mr. Gatewood's inability to locate witnesses to the old crimes was pivotal, Judge Merritt wrote, especially since the Arkansas aggravated robbery law under which Mr. Gatewood was convicted in 1976 included “attempts” to inflict death or injury while committing robbery.
If Mr. Gatewood's aggravated robbery conviction was based only on an attempt, Judge Merritt said, it may not be counted as a strike.
Convictions reversed
In a ruling that faulted the government's failure to present even minimal evidence of guilt, the 6th Circuit reversed six of Carl Peterson convictions for money laundering and sent his case back for resentencing.
The Columbus resident was convicted on 44 counts of cheating Ohio Medicaid plus 37 counts against his company, Peterson Enterprises Inc.
U.S. District Judge James Graham sent him to prison for four years and ordered $423,264.75 restitution. Charges included conspiracy, theft, mail fraud and money laundering.
Mr. Peterson's intermediate-care facilities, housing about 10 mentally disabled residents each, were in Oakley, Roselawn, Avondale and Springdale.
Jurors said fraudulent reimbursements included bills for jewelry, go-go dancers and services done by volunteers.
He appealed from prison and 6th Circuit Judges James L. Ryan, Alice M. Batchelder and Eric L. Clay reversed only money laundering convictions.
Money laundering uses banks and legitimate businesses to hide the origin of the proceeds of crime. To convict, federal prosecutors must prove some impact on interstate commerce.
Three charges involved checks drawn on Society National Bank. They were used for cash and to buy a ring and a sound system. The government said that “National” in the bank's name proved the bank, and therefore the checks, affected interstate commerce.
Nonsense, Columbus lawyer Max Kravitz responded, and the 6th Circuit agreed.
Prosecutors had to prove beyond a reasonable doubt that the bank was involved in interstate commerce, the court said, and “that obligation cannot be finessed simply by asking a jury to infer that a bank with the word "National' in its name "must' be en gaged in interstate commerce.”
Similarly, the judges rejected the prosecutors' claim that all cash travels in interstate commerce because rings and sound systems are goods purchased in interstate commerce.
“The record is devoid of any evidence indicating that the jeweler and the sound system dealer were engaged in interstate commerce or that the articles involved were moved in interstate commerce.”
Prosecutors said three State of Ohio checks — focus of the remaining reversals — affected interstate commerce because they moved through the mail.
Granted, they were mailed to Mr. Peterson's office but the illegal transaction occurred when he deposited the checks, the court said. “Therefore, we must reverse the convictions on these counts as well.”
The court sent the case back to Judge Graham for resentencing on the remaining counts.
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