High court to hear Davidians' appeal

They challenge sentences based on type of firearms used in Waco shootout

Dallas Morning News, September 11, 2000
By The Associated Press

The Supreme Court agreed Friday to review an appeal in which five Branch Davidians challenged the sentences they received for using firearms during a gunbattle that began the 1993 standoff at the group's compound.

The court said it will hear the Branch Davidians' argument that they could not be given longer sentences for using machine guns, rather than some other kind of firearms, because a jury never decided what type of weapons were used.

A decision is expected by July.

Four federal agents and three Branch Davidians were killed during the Feb. 28, 1993, shootout that started when federal agents tried to arrest sect leader David Koresh. Fifty-one days later, Mr. Koresh and 74 followers died in a fire after agents injected tear gas in the building. Nine Branch Davidians who escaped were arrested.

After a trial, Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam and Kevin A. Whitecliff were sentenced to consecutive terms of 10 years in prison for manslaughter and 30 years for using machine guns during a violent crime. Graeme Leonard Craddock was sentenced to 10 years for using a grenade and was given a consecutive 10-year term for using a machine gun.

The firearm law set a five-year sentence but allowed a 10-year term if the weapon was a semiautomatic firearm and a 30-year term for use of a machine gun or grenade.

The jury was not asked to decide what type of firearm was used. The judge made that determination during sentencing.

The five Branch Davidians challenged the firearm sentences, saying the type of weapon should be considered an element of the offense that must be submitted to the jury.

The 5th U.S. Circuit Court of Appeals ruled against them, saying the type of weapon need not be decided by the jury.

Also Friday, U.S. District Judge Walter Smith selected a British-based company recommended by special counsel John Danforth to preside over the infrared camera field test that may determine whether or not gunshots were fired at the Branch Davidian compound on the last day of the siege.

The demonstration is likely to be at Fort Hood in Central Texas, attorneys for the Branch Davidians suing the government in a wrongful-death case said. That goes to trial in mid-May. The Branch Davidians claim that bursts of light from gunfire were captured on the FBI's aerial infrared surveillance footage.