Court to tackle clarity of Miranda warnings again

By MICHAEL J. SNIFFEN, Associated Press Writer Michael J. Sniffen, Associated Press Writer – Mon Jun 22, 5:36 pm ET

WASHINGTON – “You have the right to remain silent.” Most people only hear those words while watching cop shows on TV. They usually zone out for the rest of the now familiar Miranda warning to people under arrest.

But in the real world, the Supreme Court is still listening to the words that follow. It agreed Monday to hear another case over just how explicit that phrasing must be.

In its landmark 1966 Miranda v. Arizona ruling, the high court set out to protect the constitutional right of people not to incriminate themselves once in custody. They dealt a blow to those officers who bullied or beat false confessions out of suspects. The justices said the police have to tell defendants they can have a lawyer represent them, even if they can’t afford one.

Since 1966, dozens of prosecutors and defendants have asked the court to clarify its ruling. The court has addressed many of those appeals and reaffirmed its basic ruling in 2000.

Along the way, the justices made clear they don’t insist that every police officer use precisely the same words, so long as the important details are clear, even to people with no legal training or little or no schooling.

Monday they agreed to examine what the Tampa, Fla., police told Kevin Dewayne Powell after his arrest on Aug. 10, 2004. Powell was convicted of possessing a firearm. As a convicted felon, he wasn’t allowed to have one. Powell told Tampa officer Salvatore Augeri he bought the weapon “off the street” for $150 for his protection.

But the Florida Supreme Court overturned the conviction on grounds the Tampa police didn’t adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Florida law enforcement, in the person of chief assistant attorney general Robert J. Krauss, asked the Supreme Court to decide the Tampa police gave Powell a clear enough Miranda warning. On behalf of Powell, Cynthia Dodge, an assistant public defender in Polk County, Fla., argued in a brief that the justices should let the Florida ruling stand because it conformed to previous Miranda rulings and also relied on Florida‘s own constitution.

Before he confessed to Augeri, Powell signed a statement that said he could remain silent and, if he did talk, what he said could be used against him in court. The statement added:

“You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.”

The Supreme Court’s original Miranda ruling said whatever words the police used they had to make clear that a suspect could “have the lawyer with him during interrogation.”

Florida’s highest court found the Tampa warning fell short of this essential element because Powell was “never unequivocally informed that he had the right to have an attorney present at all times” during the police interview and limited the narrower right “to talk to” counsel to the period “before answering any of our questions.” The Florida justices ruled that the last sentence of what Powell signed “did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated.”

Dodge said the warning to Powell implied that his right to counsel was limited to a conversation before the police began questioning.

For the state, Krauss argued that only “a strained, literalistic reading, inattentive to context” could conclude Powell could not have a lawyer present during questioning. “While the warning at issue may not be the most elegant formulation of Miranda warnings,” Krauss wrote, “the test is reasonable clarity, not elegance.”

Krauss said the Supreme Court should resolve differences between federal circuit courts of appeals on how explicit police must be that a lawyer can sit in on their interrogations.

The case is 08-1175, Florida v. Powell.

Ex-FBI agent convicted of S. Calif. robbery plot

By AMY TAXIN, Associated Press Writer via Yahoo! News

SANTA ANA, Calif. – A jury convicted a former FBI agent and another man of plotting to rob a drug stash house in Southern California using a machine gun.

The verdict was read Wednesday after jurors reached their decision late Tuesday in the trial of 44-year-old Vo Duong Tran, a former agent from New Orleans.

Tran and Yu Sung Park, 36, were arrested in July and accused of planning to rob what they thought was a drug stash house in the Orange County city of Fountain Valley. The site was actually part of an FBI sting operation.

“I think it’s disappointing that (Tran) is a former agent and he turned to this kind of conduct,” Assistant U.S. Attorney Robert Keenan said. “He and Mr. Park were dangerous people.”

Tran’s wife, Nia Bui, held the couple’s 1-year-old son on her lap and sobbed loudly while the verdict was read. Outside the courtroom, Bui said she believes her husband was set up by the FBI.

“He’s a good father, he’s a good person. He’d never kill people or rob,” she said. “I can’t believe they do this to him. They break families like this.”

During the trial, prosecutors played recorded conversations in which men they identified as Park and Tran were discussing whether to shoot residents of the drug house.

Jurors deliberated for a day before convicting the defendants of conspiracy to obstruct commerce by robbery, interstate travel to commit a crime with a firearm, possession of a firearm in furtherance of a violent crime and possession of a machine gun. Each faces a mandatory minimum sentence of 30 years in prison at sentencing, set for June 15.

Tran was an FBI agent in Chicago for more than a decade before being fired in 2003. Defense attorney Alex Kessel previously said Tran was fired for identifying himself as an agent while on suspension, though he was never convicted of the allegation.

Telephone messages left Wednesday for Kessel and attorney Brian Steel, who also represents Tran, were not immediately returned.

The arrests of Tran and Park followed a federal probe in which conversations between Tran and an FBI informant were secretly taped for nearly six months.

Authorities said Tran flew from New Orleans to raid the home, where the informant had told him there was $300,000.

Authorities said they found a machine gun, rifle equipped with a silencer, handguns, bulletproof vests, fatigues, zip ties, black ski mask and more than 600 rounds of ammunition in a rental car and hotel room the men used.

Defense attorneys said Tran was passionate about his law enforcement career and was playing along with the robbery scheme to gather evidence on informant Alex Dao so he could turn him over to authorities.

Yolanda Barrera, Park’s attorney, said it was hard to understand how the jury could seriously consider the massive amount of evidence and testimony in just a day. “This was a four-week trial and the jury basically deliberated for five hours,” she said.

(This version corrects that although decision was announced Wednesday the jury reached it late Tuesday.)

 

Cop murder spotlights crisis of killer aliens

Posted: September 28, 2006
9:18 pm Eastern

© 2009 WorldNetDaily.com

INVASION USA
No government agency tracks crimes by illegals, not even attacks on police

 

Officer Rodney Johnson

WASHINGTON – Charged with molesting a 12-year-old girl, Juan Leonardo Qunitero had been deported back to Mexico in 1999 as an illegal alien. Nevertheless, last week, he was back in the U.S., living comfortably in a city that prohibited police from asking anyone about their immigration status.

Rodney Johnson was a 12-year veteran on the Houston police force. Married with five children, he was big, kind-hearted and unafraid of working the toughest gang beats or late-night shifts.

On Thursday, Sept. 21, around 5:30 p.m., he pulled over a white Ford pickup driving 50 mph in a 30 mph zone in what should have been a routine traffic stop. The driver, Quintero, had neither a driver’s license nor any other identification so, after a pat down, Johnson handcuffed him and placed him in the back of his patrol car. But Johnson missed the gun in Quintero’s waistband. The prisoner pulled it out and fired four times at Johnson at close range.

When Johnson was laid to rest this week after his execution-style murder he joined a growing list of law enforcers gunned down by foreign criminals. Meanwhile, in Florida, a sheriff’s deputy was killed and another shot in the leg yesterday after they pursued a motorist who ran away from a traffic stop.

Deputy Vernon Matthew “Matt” Williams and his K-9 unit were shot dead, officials said. Deputy Doug Speirs was shot in the leg but was expected to recover. Polk County sheriff’s deputies early today said they shot and killed a suspect, described as a black man with a Jamaican accent with dreadlocks.

Though no government agency in the U.S. – not the FBI nor Immigration and Customs Enforcement – tracks violent crimes by illegal aliens, even murders of police officers, a search by WND of news reports in the last three years shows law enforcement personnel are hardly immune to deadly carnage wrought by untracked, undocumented armed predators inside the country.

Less than a year ago, Nov. 12, 2005, Dallas police officer Brian Jackson met the same fate.

It seems Juan Lizcano, an illegal alien who worked as a gardener, had a few too many drinks that Saturday evening before heading to the home of Marta Cruz, according to a witness who accompanied him.

Again, police responded early Sunday morning to a domestic disturbance call at Cruz’s home and were told that Lizcano had threatened his ex-girlfriend and fired a handgun inside the house. He was gone by the time officers arrived.

About 45 minutes later, officers were notified that Lizcano had returned to the home. Officers pursued him on foot as the suspect jumped over fences and ran through yards.

Officer Jackson died of a wound to his right underarm, near his protective vest, suffered in a gunfight with Lizcano. He and his wife, JoAnn, a respiratory therapist, had been married less than four months.

In Denver, Raul Gomez-Garcia, another illegal alien charged with shooting two police officers at a crowded party where both the gunmen’s wife and 2-year-old daughter were seated, was convicted last week.

Gomez-Garcia, 21, faced trial in Denver District Court for second-degree murder of Denver police officer Donald “Donnie” Young and attempted first-degree murder of Detective Jack Bishop. The two officers were shot in the back May 8, 2005, as they worked security at an invitation-only baptismal party.

The officers had turned Gomez-Garcia away from the party. He returned later, intent on shooting the two officers.

Gomez-Garcia has almost no education, is illiterate and explained to investigators that he had carried a loaded gun since he was 13 years old. He came to the United States when he was 8 and lived in south central Los Angeles.

Perhaps one of the most dramatic stories of a police officer being shot by an illegal alien is the case of shooting Arizona sheriff’s deputy Sean Pearce, an 11-year veteran of the force who served a search warrant Dec. 16, 2004, at a Mesa trailer home.

Hiding behind a Christmas tree inside was Jorge Luis Guerra Vargas, a 22-year-old illegal alien who opened fire on Pearce.

Ironically, at the time of the shooting, Pearce’s father, Russell, an Arizona legislator, was in Washington giving a speech about illegal immigration at the Brookings Institution when he got the message to call home. His wife, he knew, “wouldn’t be calling if it wasn’t important. It had to do with the children.” Pearce excused himself from the podium and found a phone to hear the tragic news.

A WND investigation of local news reports found dozens more cases of police officers slain by illegal aliens. They include:

Deputy Brandon Winfield

 

• Deputy Brandon “Brandy” Winfield, 29, of the Marion County, Ohio, sheriff’s department, was murdered Oct. 17, 2004. Winfield was on routine patrol when he stopped to assist what he thought was a stranded motorist. Winfield later was found shot in the head in his vehicle, which had hit a guard rail and flipped into a ravine. Both of those charges in the crime were illegal aliens. 
• Detective Hugo Arango, 24, of the Doroville, Ga., police department, was murdered May 13, 2000. Arango was shot and killed after having been flagged down by a club patron who indicated that some men had been breaking into cars outside of a nightclub. Detective Arango located three suspects and detained them. As he searched for weapons, Bautista Ramirez, an illegal alien from Mexico, shot Arango four times. The first shot took off one of his fingers, the second went through his thigh. As Arango lay on the ground helpless, Ramirez intentionally fired one round through Arango’s badge, and then executed him with a shot to his head that severed his brain stem. 
• National Park Service ranger Kristopher “Kriss” Eggle, 28, was murdered Aug. 9, 2002. Ranger Eggle was shot and killed in the line of duty at Organ Pipe Cactus National Monument while pursuing members of a drug cartel hit squad which fled into the U.S. after committing a string of murders in Mexico.
  

  Deputy Saul Gallegos

   

• Deputy Saul Gallegos, 35, of the Chelan County, Wash., sheriff’s department was murdered June 26, 2003. Gallegos was shot and killed after stopping a vehicle in a routine traffic stop. Jose Sanchez-Guillen, 22, who had been deported three times to Mexico, was found guilty of aggravated first-degree murder.
  

  Deputy Sheriff David March

   

• Deputy Sheriff David March, 33, of the Los Angeles County sheriff’s department, was murdered April 29, 2002. March was on routine patrol when he made a traffic stop. The driver, Armando Garcia, shot March in the chest and the head – execution style. Garcia had been deported three times, had a long history of drug charges, violent crimes and weapons charges. The illegal alien from Mexico was already wanted for two attempted murders. 
• Officer Tony Zeppetella, 27, of the Oceanside, Calif., police department, was murdered June 13, 2003. Zeppetella stopped Adrien George Camacho for a traffic violation. Camacho pulled out a gun and shot the officer. Camacho then pistol-whipped the injured officer before shooting him again, killing him with the officer’s own gun. Camacho is an illegal alien and gang member from Mexico with a criminal history that includes five previous felony convictions and several deportations. 
• A Huntsville, Ala., police officer, Daniel Howard Golden, 27, was shot multiple times by Benito Albarran, 31, an illegal immigrant in August 2005.

While no government agencies specifically track crimes by illegal aliens, there have been some efforts to quantify the loss. Last December, Mac Johnson set out to investigate the number of homicides perpetrated by illegal aliens. Since the federal government would not provide any useful information, he contacted all 50 statehouses. Three months later, he had fewer than a dozen responses. Only one state, Vermont, provided any useful information.

He then set out to statistically estimate the number of murders by illegal aliens based on available crime data and conservative estimates of the actually number of illegal aliens in the country – which, of course, nobody really knows.

He found that between 1,806 and 2,510 people in the U.S. are murdered annually by illegal aliens. If he’s right, that would represent between 11 percent and 15 percent of all murders in the U.S.

In one study of a sample 55,000 illegal immigrants serving prison sentences in the U.S., it was discovered that they are responsible for over 400,000 arrests and over 700,000 felony crimes.

According to Heather McDonald of the Manhattan Institute, 95 percent of all outstanding warrants for homicide (which total 1,200 to 1,500) target illegal aliens. Up to two-thirds of all fugitive felony warrants (17,000) are for illegal aliens.

Bill forces citizens to submit DNA

LIFE WITH BIG BROTHER
Police to obtain samples for state, federal databases – without charges filed

Posted: February 05, 2009
11:50 pm Eastern

By Chelsea Schilling
© 2009 WorldNetDaily

 

Citizens who have been arrested may be required to submit DNA samples to authorities before being convicted of any crime – and those records would be kept in state and federal databases.

The Washington state Legislature has introduced a measure that would require police to obtain the samples from even suspects accused of minor crimes such as shoplifting, according to the Seattle Times.

The proposal is part of a new movement in several states to adopt similar measures. More than 12 states already permit police to collect samples prior to convictions and three more are considering adding the provision.

Don Pierce, executive director of the Washington Association of Sheriffs and Police Chiefs, told the Times he welcomes the proposal.

“It is good technology. It solves crimes,” he said. “We take fingerprints at the time of arrest, which in many ways is a lot more intrusive.”

Critics claim Washington’s HB-1382, sponsored by Rep. Mark Miloscia, D- Federal Way, is unconstitutional because police and jail staff would be required to keep DNA records on adults and juveniles arrested on suspicion of a felony or gross misdemeanor.

Currently, police are required to obtain a search warrant or the suspect’s permission before collecting DNA by swabbing citizen’s cheeks.

“This bill would take the next step in the use of DNA technology to help catch individuals who have gone out and harmed people,” Miloscia told the Times.

According to the bill, authorities would remove a suspect’s DNA information if they were not charged or found guilty.

Each DNA test costs taxpayers $82, and the price tag for the plan could reach $1 million over two years. Miloscia said Washington could look to the federal government to recover some of those costs.

Jack King, staff attorney for the National Association of Criminal Defense Lawyers in Washington, D.C., told the Times his group has been battling DNA-collection measures since 2004. He said requiring authorities to obtain DNA before convicting a person would violate their constitutional protections from unreasonable search and seizure.

“DNA samples reveal the most personal, private information about a person’s physical and mental makeup,” King said. “It is terribly unfair to an arrestee.”

Upon learning of the controversial, several readers posted the following responses:

• This goes beyond stupid. They say that if the person isn’t convicted that they will destroy the sample. That is a lie. The federal government will not destroy records simply because a state destroyed theirs.

• I don’t like it one bit. There should be a warrant provided before they take my DNA.

• What happened to innocent until proven guilty? Even if found guilty, this is extreme for minor offenses.

• The idea is to build a national database with everyone in it. This is just another step in the process. Next you will be required to provide a DNA sample when you get your driver’s license, and then they will simply take it at birth when you apply for a birth certificate. The point of the measure is not identification. They can already ID you. The point is to make it normal for people to give DNA samples to the national database. After all, only people with something to hide would object to this type of intrusion and surveillance. Right? Everyone needs to e-mail their legislator and tell them you do not want this or else they will just do it. This is not about criminals.

• To the morons who say, “If you aren’t a criminal don’t worry about it,” our Founding Fathers gave us a Bill of Rights that gives us freedom from such sorts of unreasonable searches and seizures. The government has no right to my DNA chain until I am convicted of a felony and not before. As one of our great Founding Fathers has said, “Those who would sacrifice liberty for security deserve neither.”

• I wouldn’t trust the government promising to destroy the sample. When I joined the military, they took my fingerprints “for a security clearance check” – and they went into the great big database with all the criminals. Later, they took my DNA — “so there would be no more unknown soldiers” – and later Congress passed a law making this DNA available to any police department that requests it. And there is no provision to request destruction of the sample. Once you give the government an inch, it will take a mile.

Gun trial witness: Feds out for ‘vengeance’

Posted: January 31, 2009
10:55 pm Eastern

 

By Bob Unruh
© 2009 WorldNetDaily

 

An expert who testified against the government in a disputed Wisconsin gun case involving what the defense has described as a “broken” gun says federal agents ever since have been retaliating and the government’s actions are costing his business hundreds of thousands of dollars.

“I am a witness in a still pending case, and I am being ‘leaned on,’” Len Savage, of Historic Arms LLC, told WND. “This is not the first time ATF has taken out vengeance during a court case.”

The dispute stems from Savage’s testimony during a Wisconsin gun dispute. There a man loaned out a gun, it fired several shots at one time at a gun range, and the federal government prosecuted him for transferring a “machine gun.”

Savage’s testimony contradicted government opinions that the gun was, in fact, a machine gun, because the type of rifle was known to have a problem with misfiring. The defendant, David Olofson, nonetheless, was convicted and his case is on appeal.

The agent whose opinion Savage had contradicted, Max Kingery, shortly after was assigned by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives to review a gun part that Savage was proposing to build and sell as part of his business.

The government’s review involved Savage’s part, a conversion unit intended to allow a small number of owners of a specific type of legal machine gun to be able to shoot ammunition costing 1-2 cents per bullet rather than 25 cents.

But the agent added several pieces of metal, some chain, some wires and some duct tape to the conversion unit, allowing it to fire, and then classified the conversion unit itself as a machine gun.

“Max Kingery was assigned to evaluate the submitted product from my company. He is the one who contrived the test, and made the determination,” Savage told WND.

But he said he’s not going to let the decision go unchallenged, and he’ll contest the government’s opinion at a trial over its “arrest” of the gun part in question.

That case now has become formal, with the filing of documentation in federal court in the Northern District of Georgia and naming as a defendant “One Historic Arms Model 54RCCS ’7.62x54R Caliber Conversion System’ machine gun, Serial No. VI.”

“Plaintiff requests that the court issue a warrant and summons for the arrest and seizure of the defendant property; that notice of this action be given to all persons known or thought to have an interest in or right against the defendant property; that the defendant property be forfeited and condemned to the United States of America…” the government’s civil filing claims.

Several WND messages left with two different offices of the federal agency over a period of two days requesting a comment were not returned.

“Don’t forget the guy who did the evaluation is the guy I testified against four months previously,” Savage said. “That’s impropriety.”

He said, in fact, if anyone made a “machine gun” in this case, it is the government, since its agents added the materials needed to make the conversion unit fire a bullet.

“I didn’t submit it with those parts,” he said.

He said he had proposed building about 350 of the units to sell to customers who already have been approved by the government to have and use the type of machine gun they would fit. But the government’s decision to add parts and define it as a machine gun stymies not only that plan, but apparently is costing him possession of the unit he submitted for examination.

Savage told WND the logic behind the addition of the parts and then the determination the conversion unit is a machine gun doesn’t follow.

“If you tie a string on both triggers of daddy’s double barreled [shotgun] then that would be a machine gun too,” he said, citing the government’s definition of anything that causes multiple shots with a single trigger action.

He said the government did, in fact, make just that determination, but eventually backed away partly.

In 1996, the Firearms Technology Branch of the federal agency determined that “a 14-inch long shoestring with a loop at each end” when attached to a rifle “caused the weapon to fire repeatedly until finger pressure was released from the string.”

“Because this item was designed and intended to convert a semiautomatic rifle into a machine gun, FTB determined that it was a machine gun…,” the agency confirmed in a 2004 letter.

However, in 2007, it followed, “Upon further review, we have determined that the string by itself is not a machine gun, whether or not there are loops tied on the ends. However, when the string is added to a semiautomatic firearm … the result is a firearm that fires automatically and consequently would be classified as a machine gun.”

Savage said such logic should apply in his case, because his conversion unit – without the addition of the extra materials added by the government – doesn’t fire.

He said the government is in the processing of “arresting” the conversion unit, and then a trial will be scheduled for a determination. The government wants ownership of the unit as well as its costs in the case.

Savage wants a determination that his unit is a repair part or conversion unit.

And he said if the government wins its argument, there will be further complications, since the agency has made conflicting determinations in the past.

Specifically, he said, the AFT has ruled that for MAC type machine guns, the upper portion “that contains the bolt, recoil system and barrel … to be a ‘gun part,’ not even a firearm.”

“All of these without exception would fail the ATF’s contrived test,” he said. “If I took the tape and zip tie route that ATF demonstrated in detail and put that on the stock unit, I have a zip gun, just as illegal.”

“This ‘test’ will turn any upper that has a feed device into not only a firearm, but a machine gun,” he said.

Savage’s testimony in the Olofson case, in Berlin, Wis., harshly criticized the government’s weapons testing procedures. In that case, the defendant was convicted and sentenced to 30 months in jail for loaning a rifle that misfired, letting off three bullets at one time.

The government then classified it a machine gun, and convicted Olofson of “transferring” such a weapon. He surrendered to federal authorities and is serving his term, prompting the Gun Owners of America to issue a warning about the owner’s liability should any semi-automatic weapon ever misfire.

“A gun that malfunctions is not a machine gun,” Larry Pratt, executive director of GOA, said at the time. “What the [federal Bureau of Alcohol, Tobacco, Firearms and Explosives] has done in the Olofson case has set a precedent that could make any of the millions of Americans that own semi-automatic firearms suddenly the owner [of] an unregistered machine gun at the moment the gun malfunctions.”

When U.S. District Judge Charles Clevert imposed the sentence, a commentary in Guns Magazine said, “It didn’t matter the rifle in question had not been intentionally modified for select fire, or that it did not have an M16 bolt carrier … that it did not show any signs of machining or drilling, or that that model had even been recalled a few years back,” said

“It didn’t matter the government had repeatedly failed to replicate automatic fire until they replaced the ammunition with a softer primer type. It didn’t even matter that the prosecution admitted it was not important to prove the gun would do it again if the test were conducted today,” the magazine said. “What mattered was the government’s position that none of the above was relevant because ‘[T]here’s no indication it makes any difference under the statute. If you pull the trigger once and it fires more than one round, no matter what the cause it’s a machine gun.’

“No matter what the cause.”

Savage had told the agency in an earlier letter the decision to install the additional parts on his conversion unit “in order to induce full auto fire [is] clear and reliable evidence that they were contrived to deny my constitutional rights.”

He said during an interview with Jews for the Preservation of Firearms Ownership that Olofson had been instructing a man in the use of guns, and the student asked to borrow a rifle for some shooting practice.

“Mr. Olofson was nice enough to accommodate him,” Savage said. So the student, Robert Kiernicki, went to a range and fired about 120 rounds. “He went to put in another magazine and the rifle shot three times, then jammed.”

He said the rifle, which was subject to a manufacturer’s recall because of mechanical problems at one point, malfunctioned because of the way it was made.

Savage said once the government confiscated the gun, things got worse.

“They examined and test fired the rifle; then declared it to be ‘just a rifle,’” Savage said. But when agents demanded another test, a different ammunition was used and the result was a machine gun classification.

David Codrea, in the Gun Rights Examiner, wrote, “Given enough added parts that are not part of the submitted design, I know a lot of people who could turn a banana into machine gun.”

“Why are they doing this, especially since many other caliber conversion uppers exist that are not so classified? Will this area be revisited? Or is this payback for Savage testifying on behalf of David Olofson and in other cases?”

Court Reinstates Washington Murder Conviction

The Associated Press, Wednesday January 21, 2009

WASHINGTON – The Supreme Court has reinstated the murder conviction of the driver in a gang-related, drive-by shooting that horrified Seattle in 1994.

By a 6-3 vote, the court on Wednesday reversed a federal appeals court that had thrown out the second-degree murder conviction of Cesar Sarausad II.

The 9th U.S. Circuit Court of Appeals in San Francisco overturned the conviction because of unclear jury instructions. But the high court, in a majority opinion written by Justice Clarence Thomas, said there was “no evidence of ultimate juror confusion.”

“Rather, the jury simply reached a unanimous decision that the state had proved Sarausad’s guilt beyond a reasonable doubt,” Thomas wrote.

In a dissenting opinion, Justice David Souter said an uncertain instruction from the trial judge merged with a “confounding prosecutorial argument” that included a “clearly erroneous statement of law.”

“In these circumstances, jury confusion is all but inevitable and jury error the reasonable likelihood,” wrote Souter, who was joined in his opinion by Justices John Paul Stevens and Ruth Bader Ginsburg.

Sarausad was convicted for his role as the driver in the shooting that killed a teenage girl outside a Seattle high school.

Sarausad was a 19-year-old freshman at the University of Washington at the time of the shooting. He drove the car from which Brian Ronquillo shot and killed 16-year-old Melissa Fernandes. She had nothing to do with the gang rivalry that led to the shooting.

Ronquillo was convicted of first-degree murder and sentenced to 52 years in prison. Sarausad got a 27-year sentence.

Sarausad admitted being the driver but denied knowing that Ronquillo had a gun, much less that he was planning to kill anyone.

The jury instructions at issue concerned whether, to be convicted of second-degree murder, Sarausad had to know that Ronquillo intended to use a gun and that someone could die as a result.

The case is Waddington v. Sarausad, 07-772.