Nevada gun laws not strictly enforced, analysis finds

By Martha Bellisle, Reno Gazette-Journal

Thursday, March 14, 2013 | 12:21 p.m.

RENO — After Elene Lamb was caught buying 32 handguns for a man wanted for murder in California — a man who would have failed a background check — she took a plea deal for one count of lying on her gun purchase form and was sentenced to five months' probation.

When convicted felon Darrell Metcalf was caught with an AK-47-type assault weapon and four other guns, he was charged with one count of illegal possession of a firearm. He was sentenced to six months in prison.

And when two felons, Michael Irving and John Smith, stole a safe holding 13 firearms from a California gun club in 2009, they faced one or two illegal possession charges. They were not charged with multiple counts for each of the guns or with theft. Smith is already free; Irving will be out of prison in December.

As state and federal leaders debate new gun laws in response to a series of mass shootings, the Reno Gazette-Journal analyzed the prosecution of federal firearms cases under current laws. The investigation found that in the cases prosecuted in the past five years, many defendants were not charged with every law they violated, accepted plea deals that let many charges disappear and secured relatively lenient punishments compared to what they could have faced.

Of the 112 firearms cases prosecuted by the U.S. Attorney's office in Reno from 2008 to 2012, only two went to trial. About 95 percent were resolved with plea deals, which is common in federal cases, experts said. Less common with the Reno cases was that some felons caught with several guns or people who violated numerous laws were only indicted on one or two criminal charges, leaving prosecutors with few bargaining tools.

Ron DePersia, the president of the Sierra Valley Gun Club in Portola, Calif., said he was outraged that the two men who stole his gun safe did not face harsher punishments. Five high-priced assault weapons were never found and were likely sold on the street, he said.

"The country doesn't need new gun laws when the laws already on the books are not being prosecuted," he said.

About 40 of the cases ended with half or more of the charges dismissed. Of the 112 cases that reached the sentencing phase, prosecutors filed 290 charges and dropped 131 of those during plea negotiations. Some of the 2012 cases have not yet been resolved.

Several cases in the RGJ analysis involved people who illegally possessed assault weapons — the very guns that Congress is considering banning. A dozen felons caught with assault rifles received sentences that ranged from probation to time already served in jail to a few years in prison. One felon caught selling machine guns was sentenced to the time he had served in jail. He did not go to prison.

Under current law, the maximum punishment for a felon caught with any firearm is 10 years and a $250,000 fine. Only six offenders in the 112 cases reviewed by the RGJ received a prison sentence close to that maximum and most involved multiple weapons. None was fined.

Ten of the cases involved people who violated the background check law. Most received probation, while a few spent several months in prison. Five of those people bought guns for felons or fugitives, which is against the law, but none was charged with that offense, the RGJ found.

Washoe County Sheriff Michael Haley said officers work hard to catch people violating gun laws but don't have a say in what happens next. They always hope for appropriate punishments, but he's concerned that doesn't always happen, especially with "straw buyers" — people who buy guns for others who are prohibited from having them.

"As a citizen, I'm appalled that we have straw buyers bypassing the background checks and not being prosecuted to the full extent of the law," he said. "If we're going to be serious about holding offenders accountable, we've got to enforce the laws that are available."

"If we're serious about gun control, the punishment needs to reflect that seriousness."

PROSECUTORS DEFEND PRACTICE

Nevada U.S. Attorney Dan Bogden, who oversees the Reno office, defended the way his prosecutors handle firearms cases.

He said his prosecutors do not charge every count possible in an indictment because, when a person pleads guilty, the U.S. Sentencing Guidelines allow judges to consider the "relevant conduct" of the defendant — meaning judges will look at everything that happened in the case, not just the final charges. If a person is caught with four guns and pleads guilty to one count, the judge can consider the other guns at sentencing, he said.

But Nancy Gertner, a former federal judge and now a professor at Harvard Law School, said most federal prosecutors "over-charge cases to get the best deal possible."

She said that federal prosecutors usually indict offenders for numerous crimes, not because they plan to prosecute the defendants on all of those charges, but because they hope to "squeeze a plea deal," she said.

"They over-indict to get a plea deal," she said, adding that those extra charges can be used as "bargaining chips."

Although prosecutors sometimes hold back on charges if the person is cooperating with an investigation or is being used as a pawn in a larger plan, most will charge multiple counts in order to secure the best deal possible — the toughest punishment, Gertner said.

"Dismissing those counts happens in every single case because the federal criminal code has multiple overlapping charges, really designed to maximize prosecutors' power," she said.

That didn't happen in many of the Reno cases, the RGJ analysis found. Prosecutors usually did not charge the defendant with the most charges possible.

Bogden confirmed that was true.

"I can state that we do not 'load up' indictments in our (U.S. Attorney's Office) and use those counts as bargaining tools," he said.

When Bogden was asked if he was missing an opportunity to punish firearms offenders to the full extent of the law, he had a one-word reply: "No."

CONGRESS: ARE WE USING THE LAWS WE HAVE?

The massacre at Sandy Hook Elementary School launched a nationwide debate on whether the country needs stricter controls on firearms. President Barack Obama responded with a list of executive actions and proposals for new legislation, including universal background checks and a ban on future assault weapon sales.

Earlier this month, the Senate Judiciary Committee passed one of four new firearms measures. The panel passed a bill that imposes tough penalties for straw buyers. The "firearms trafficking" statute passed on an 11-7 vote. Sen. John Cornyn, R-Texas, objected to the measure, saying straw-buying is already illegal. He said the real problem is the lack of prosecutions.

"So we double down and say 'this time we really mean it,' when in fact the real problem, I think, in many instances is the lack of prosecution of existing crimes by the Department of Justice," he said. "I have a hard time explaining to my constituents back home how passing more laws that will go unenforced makes them any safer."

U.S. Attorney General Eric Holder spoke to the U.S. Senate Judiciary Committee March 6 and said he has worked with Vice President Joe Biden to "develop common-sense recommendations to reduce gun violence, keep deadly weapons out of the hands of those prohibited from having them, and make our neighborhoods and schools more secure."

But he warned that sequestration is already having a "significant negative impact" on Justice Department employees and programs "that could directly impact the safety of Americans across the country."

U.S. District Judge Larry Hicks, who oversaw many of the Reno gun cases, said that while the RGJ firearm prosecution data "deserves further inquiry," one factor that may affect the handling of cases is that the federal criminal justice system, as a whole, has been operating with limited resources for years.

Nevada has four full-time federal judges to cover seven judicial seats, he said. The Silver State has three open judge seats on the federal bench. If the federal government demands an increase in firearms prosecutions, it needs to fill judicial positions and increase financial support for investigations, prosecutions and incarcerations, he said.

Cases that go to trial are demanding on limited resources, he said, and it costs taxpayers $30,000 a year to keep a person incarcerated.

"If you give a man a 20-year prison sentence, you've just charged taxpayers $600,000 for the incarceration alone," he said. "That's not including the investigation and prosecution. That's why we need to look at the overall picture."

Holder's warnings could only make it worse.

Laurie Levenson, a professor at Loyola Law School in Los Angeles and a former federal prosecutor, said the RGJ's analysis of federal cases was consistent with a national trend in which most federal cases — 95 percent to 97 percent — end in plea deals.

Prosecutors often quickly settle the smaller cases and use their limited resources to go after the bigger cases, she said. "Felon-in-possession of a firearm" cases are "low-hanging fruit" and are quickly resolved, she said.

But when it comes to straw buyers like Lamb — people who skirt background checks by purchasing firearms for people prohibited from having guns — Levenson said it might be wise to "ramp up prosecutions on those cases."

"Lamb is an enabler," Levenson said of the woman who bought dozens of Glocks for a killer.

Lamb was one of six people prosecuted in Northern Nevada since 2008 for being a straw buyer. The RGJ analysis found that all of those cases ended with probation or minimal prison terms.

ACCOUNTABILITY THROUGH TRANSPARENCY

Gartner, with Harvard Law, said it's sometimes difficult to know the reasons behind what's included in an indictment or a plea deal.

Prosecutors sometimes go easy on people who cooperate or provide information that would help in the arrest of others. Deals are sometimes strategic decisions based on a bigger goal. But that information is not always available in the court records, she said.

One change that would help shed light on federal prosecutions and hold everyone involved accountable would be more transparency in sentencing decisions, she said. The U.S. District of Massachusetts is the only district in the country that does not seal its "Statement of Reasons" forms. These are forms a federal judge must fill out for all felony cases.

The forms include information on whether the judge stayed within sentencing guidelines, whether there were criminal history or charging issues and other details. The forms are sent to the U.S. Sentencing Commission, which uses the information to track cases across the country. Keeping those forms sealed denies the public clarity on federal cases, Gartner said.

"The public and the media have to speculate on why a judge and prosecutor did what they did," she said. "In my opinion, that's outrageous."

Everyone involved in the debate about new gun laws needs as much information as possible before making decisions and must first figure whether the right cases are being brought against the right people, she said. The country must first figure out what actually works to cut down on gun violence.

Judge Hicks said he would have concerns about making all "Statement of Reasons" forms public because in some cases, if a defendant cooperated with law enforcement, he or she could face retaliation.

Hicks said he couldn't comment on his cases, nor would he speak on rulings by another federal judge. But he did say that the decisions made by prosecutors — the number of charges brought and the number of counts in a plea deal — are made well before they reach his court.

Once the case is before him, Hicks said, he makes sentencing decisions based on many factors and uses federal sentencing guidelines to order the ultimate punishment. But while the national debate centers on firearms, Hicks said he questions whether the focus is off-target.

"I would say, as a judge watching what's happening in our society today, I am more concerned about drugs than I am about guns," Hicks said. "I see more lives affected on a daily basis and lives lost on a regular basis related to drugs than to guns. I see more guns tied to drug selling or usage than any other single source."

"Where do you put your law enforcement, prosecution, court and prison emphasis?" he asked. "Those are questions I don't have an answer for, but it causes me to wonder.

"This country is trying to figure it all out."