Sunday, November 07, 1999
Unused guns still net prison time for 2
BENCHMARKS
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Two men with guns will serve extra time in prison even though they never used them.
In the first case, Edward Chambers never laid a hand on a federal officer nor did he draw a pistol on the FBI agent pointing a shotgun at him.
Still, jurors in Covington convicted Mr. Chambers of assaulting a federal officer.
Mr. Chambers was picking up a $20,000 payment for a drug dealer at a Northern Kentucky home in 1997 when four agents stormed in, weapons drawn, shouting “FBI, FBI, get down, get down.”
Agents said Mr. Chambers tried to reach into his right front coat pocket, but agents tackled him and recovered a semiautomatic weapon from that pocket.
At trial, one agent said that Mr. Chambers reached into his pocket and “I was thinking that he was getting ready to pull a gun. I didn't see the gun but based on prior experience I knew that he had a gun in his pocket and was going for it.”
A second agent said he perceived Mr. Chambers' hand in his pocket as “a threat.”
Mr. Chambers denied trying to draw the gun and testified that he told his tacklers, “my right front pocket,” to let them know about the unseen weapon. Therefore, he said, he committed no assault.
On appeal, Mr. Chambers also said he showed no force and that the agents' testimony was so inconsistent his conviction was unjustified.
Further, Mr. Chambers said U.S. District Judge William O. Bertelsman, who tried his case, supported his version of the confrontation:
“It seems unusual that somebody would try to draw (a weapon) when faced with four federal agents, one of them with a shotgun.”
That may all be true, but Mr. Chambers' conviction was no mistake, Judges Harry Wellford, Richard Suhrheinrich and R. Guy Cole Jr. said.
Reaching into his pocket was a “forcible assault or threat or display of physical aggression toward the officer as to inspire fear of pain, bodily harm or death.”
That fits the definition of assault on a federal officer.
In the second case, Ronald Cowan lent a sawed-off Remington .22-caliber single-shot rifle to a juvenile he knew to have committed numerous robberies. He said the youngster needed money and wanted to use the rifle in a “sting.”
The juvenile pointed the rifle at a clerk when he robbed Payless Beauty Supply in Memphis, Tenn., in 1997. Prosecuted for aggravated robbery, the juvenile told police that Mr. Cowan had supplied the weapon.
Mr. Cowan pleaded guilty to illegal possession of a rifle with a barrel shortened to less than the federal limit of 16 inches. He expected to serve 27 to 33 months under federal guidelines.
However, the probation office's presentence report urged an additional penalty because Mr. Cowan knew the rifle would be “brandished, displayed or possessed” during a robbery.
U.S. District Judge Jon Phipps McCalla agreed, sending Mr. Cowan to prison for 46 months.
“He basically aided and abetted in the commission of the robbery,” Judge McCalla said. “He knew it was going to be a robbery with a firearm and he advanced the weapon for that purpose.”
Mr. Cowan appealed, saying he was not accountable for unforeseen actions by the juvenile. He said he had no role in the robbery, he did not aid or abet the crime and he had nothing to do with anyone brandishing the rifle during a crime.
“We disagree,” said Judges Damon Keith, Leroy J. Contie Jr. and Cole. “It is certainly foreseeable that a person borrowing a gun to commit a robbery plans to brandish, display or possess the gun during the robbery.”
The stiffened sentence stands.
Michigan lawyer Geoffrey N. Fieger went judge shopping for right-to-die client Dr. Jack Kevorkian.
In mid-1998, Mr. Fieger filed 13 suits challenging the same state law but told clerks they were not so similar that they should be assigned to one judge.
The complaints were assigned randomly to federal judges in Detroit and Mr. Fieger withdrew all but the one assigned to Judge Paul D. Borman.
Without explaining more, Mr. Fieger told reporters it was a ploy to get before Judge Borman.
The whole affair violated court rules and Mr. Fieger was fined $7,500, charged costs of $8,207, reprimanded, told not to do it again and informed that the ruling would be sent to the state's grievance commission for lawyers.
Mr. Fieger appealed the use of “reprimand” because it was a “generic term of disapproval” rather than “an adjudication of professional misconduct or a disciplinary order” that could be appealed.
He lost again. Sixth Circuit Judges David A. Nelson, Danny J. Boggs and Alan E. Norris said all punishments were well-deserved and they refused to overrule the use of “reprimand.”
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Unused guns still net prison time for 2
