Felons prosecuted for firearms face long prison sentences under federal law, and U.S. Attorney Jenny Durkan is using the law to crack down on career criminals in Western Washington. Cases referred for felons-with-guns charges have increased 45 percent here in the past three years.
King County prosecutors hoped to get Omar Tweedy off the streets and behind bars for a long time.
Tweedy, 39, a resourceful ex-con with convictions for murder and drug dealing, found himself at gunpoint during a back-seat drug deal earlier this year. His customer, Tirone “T-Squeeze” Finkley, had pulled a handgun and demanded Tweedy’s stash and cash.
Tweedy drew his own gun in a flash and fatally shot Finkley in the chest.
It was self-defense — no getting around it — and without a murder charge, frustrated police and county prosecutors knew that convictions on the remaining state drug and firearms counts would put Tweedy in state prison for only four years at best, even with his criminal history.
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But Tweedy committed his crime in the federal court system’s Western District of Washington, where government prosecutors aggressively pursue “felon in possession of a firearm” charges, a narrow slice of federal gun laws that carries outsized penalties.
In the first three years under U.S. Attorney Jenny Durkan, an Obama appointee, cases referred for felons-with-guns charges jumped 45 percent compared with the previous three years under the Bush administration.
This activity by the Seattle office bucks the overall trend in the Obama Justice Department. In the same three years, cases for felons-with-guns dropped 7 percent, according to an analysis of Department of Justice data by The Seattle Times.
This exercise in federal discretion — hammering career criminals in the federal system for crimes that could as easily be prosecuted in state courts — upsets the district’s long-serving defense chief, Federal Public Defender Thomas Hillier.
“These are cases where the U.S. Attorney’s Office has been trolling the county jails and making subjective decisions to bring these people into the federal system, where the penalties are more severe by magnitudes,” said Hillier, who oversees 23 lawyers in Seattle and Tacoma.
He believes the practice is abusive and unfair, and “undermines the truth-seeking function of the courts as it relates to keeping police honest.”
Defendants are pressured to plea bargain in cases that might have proof problems, rather than risk losing at trial and getting slammed with a decade or more of federal prison. “It’s not a healthy way to do business,” Hillier said.
That dynamic is almost certainly what motivated Tweedy. He accepted a plea that sent him to federal prison for up to 14 years.
“This is not low-hanging fruit” picked from county jails, Durkan said in reply. “These are people with a history of violent crime, many with the prior use of guns. It is important to get them off the streets, and I make no apologies as a prosecutor for doing that.”
In a justice system of limited resources and myriad tactics, prosecutorial discretion is a basic operating principle, whether targeting a drug hot spot with undercovers or using the Internal Revenue Service tax code rather than murder statutes to take down a crime lord.
The tactic of targeting repeat felons such as gang members with federal gun charges began as “Project Safe Neighborhoods,” a Justice Department program created in 2001 under then-President George W. Bush.
The program took hold in the Seattle area in 2004 when it got its first local prosecutor, lawyer Andy Colasurdo, at the time a King County deputy prosecutor. Designated as both a federal and state prosecutor, Colasurdo was told to review every firearms-related arrest in King County and decide which defendants needed to be hit with the federal hammer.
He weighed facts of the cases and the criminal histories of those accused, analyzed differences in likely penalties in state vs. federal courts, and considered “where the case presents better,” he said. Washington state, for example, has tougher restrictions on using evidence seized in cars.
Colasurdo said he chose carefully. “I’m talking about those who truly present a menace and a danger,” he said.
Those defendants are charged directly in federal court.
One such case is that of Billy Chambers, 19, who served time as a juvenile for the beating death of Ed “Tuba Man” McMichael and has since been convicted of felony theft as an adult. Chambers was recently arrested after being found with a rifle in the trunk of a car he was driving, and charged federally with being a felon in possession of a firearm.
In most other Safe Neighborhoods gun cases, the defendants and their lawyers got what became known as the dreaded “Colasurdo letter.” It offered a tough choice: either plead now to a state felony and serve a few years or be charged in federal court and risk a decade behind bars.
Defendants were being squeezed; the differences between state and federal gun-crime penalties are stark. In federal court, a felon convicted of possessing a gun for any reason can get hit with a prison sentence up to 10 years. The closest federal prison to the Puget Sound is in Sheridan, Ore., 90 minutes south of Portland, a long drive for family visits.
A comparable conviction in state court, King County Prosecutor Dan Satterberg said, would result in a prison term of up to 18 months.
In the state courts, Satterberg said, a felon convicted of nonviolent crimes might rack up several subsequent felon-in-possession convictions before getting a prison term. Juveniles with felony convictions can be caught carrying a gun as many as five times before receiving a 15-week sentence in detention.
“The laws are pretty tolerant,” Satterberg said.
By using the federal gun law as a cudgel, Colasurdo forced much better deals for state prosecutors.
Prosecutors find the federal felon-in-possession law such a powerful tool because it can be applied broadly. A defendant’s original felony conviction does not have to be for a federal crime, only a crime that carries a penalty of more than one year in jail. For example, it could be a low-level nonviolent crime, such as burglary.
Next, the defendant has to be found to have possessed or be in control of a gun. Finally — and this is the hook into the federal system — some part of the firearm or ammunition has to be shown to be involved in interstate commerce. Since Washington has no commercial firearms manufacturers, it’s a given that practically all guns in Washington traveled across state lines to get here.
Colasurdo, who left the Safe Neighborhoods position in 2010, now works as a federal prosecutor. His successor is Steven Hobbs.
In his six years, Colasurdo said, he filed about 200 cases directly in federal court and forced pleas in state court in 750 other cases. Most of the pleas occurred after he simply sent the letter.
“They are threat letters,” said Hillier, the defense lawyer. “It’s a bad event when the feds take one of these cases, at least for the defendant.”
Dispute in Nevada
Prosecutorial discretion can also mean choosing not to pursue certain crimes. Since 2009, the U.S. Attorney’s Office for the federal district of Nevada holds the record for declining the highest percentage of felon-in-possession gun cases in the country, 77 percent of such referrals, The Times has found.
The reason behind the high turndown rate, according to stories and documents published by to the Reno Gazette-Journal, was a dispute between the office and the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) over which gun cases to target.
ATF agents wanted to focus on complex gunrunning and not divert significant resources into working the more cut-and-dried referrals such as those from local law enforcement under the Safe Neighborhoods program, according to the Gazette-Journal.
At one point last year, Assistant U.S. Attorney Sue Fahami told the local ATF head in a letter that her office would not take any of the ATF’s referrals until certain unspecified “issues” were resolved. The dispute still hasn’t been settled, according to a letter released Tuesday by Nevada Republican Sen. Dean Heller and two other members of Congress.
Such embarrassment is unlikely in Seattle. Durkan said federal and local prosecutors have a long history of cooperation. She pointed out that she has known Satterberg for some 30 years.
“We saw an area where we could help,” Durkan said. “And I’m convinced that this program is having a deterrent effect.”
Lawbreaker fear factor
The Safe Neighborhoods program also can be found beyond the courthouse. It has funded a gun safety-lock program and runs ongoing “scared straight” indoctrinations in state prison systems.
In Washington, members of Project Safe Neighborhoods task forces, usually police and prosecutors, meet four times a year with inmates who are nearing release and believed to be most likely to get into gun trouble when they get out.
Many of those identified have three prior felonies, which puts them at risk for future prosecution under the federal armed “career criminal” law and its mandatory 15-year sentences.
At the prisons, the soon-to-be-freed felons are told precisely what they can and can’t do when it comes to firearms. In one session by Redmond police Cmdr. Terry Morgan, which was videotaped and released, he warned them that even being in the presence of someone with legal possession of a gun was forbidden.
“You can fish, you can bow-hunt — you cannot hunt with a gun,” he explained.
At the end of each session, the inmates are given a copy of a letter that goes into their prison file verifying they went through the program. If they are caught with a gun, the letter promises, prosecutors will seek the maximum penalty allowed by law and will not agree to a plea in which the firearm charge would be dismissed.
“It’s only fair we tell you about it,” Morgan said. “Because we are doing things that could send you back to prison for a long, long time.”
Mike Carter: 206-464-3706 or firstname.lastname@example.org