Monday, March 26, 2012 at 6:15 a.m.
The Department of Justice on Friday filed its latest -- and most likely last -- argument as to why a Tampa judge was wrong to throw out gun charges in the case of Buju Banton, an iconic and controversial reggae star who won a Grammy just hours before standing retrial on federal drug and gun charges in 2011 (read our feature on the case here).
The appeals process has been quite contentious
so far. Buju's defense team recently charged
that the government continues to "fundamentally misrepresent the facts" and that briefs filed by the DOJ are "riddled with inaccuracies and misleading statements."
Here's a brief recap of what led to this quarrel: A Tampa jury found Buju guilty of three of the four counts, including two drug charges and a gun charge. Months later, during a sentencing hearing, the judge decided to throw out the gun charge because Buju wasn't at the drug deal, never met or spoke with the guy who had the gun, and the only basis for the charge was the government's insistence that drugs and guns go together.
When Buju's legal team appealed the drug charges on grounds that he was entrapped by Alex Johnson
-- a confidential informant with dubious motives and a questionable past -- the government responded by appealing the judge's decision to toss the gun charge. If overturned, the gun charge could tack an extra five years to Buju's decadelong sentence.
The government doesn't deliver any new arguments in the documents filed Friday, choosing instead to hammer home the idea that it was reasonably foreseeable to Buju that someone might bring a gun to the warehouse where the bust occurred. The government writes:
Because the United States presented sufficient evidence from which the jury could -- and indeed did -- find that [Buju] reasonably could have foreseen that a coconspirator would possess a firearm in furtherance of their drug trafficking conspiracy, or would carry one during and in relation to that conspiracy, the district court should not have erased the jury's guilty verdict.
To back its point, the government cites a past case in which the First Circuit Court of Appeal concluded:
[A]bsent evidence of exceptional circumstances, we think it fairly inferable that a codefendant's possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.
It'll be interesting to see what qualifies as exceptional circumstances. It's unclear if Buju knew the drug deal was going down, and the government doesn't argue the fact that Buju didn't know the guy who came from Georgia to buy the kilos with a gun stashed in his car. Are those exceptional circumstances?
If not, is it really reasonable that Buju could have known that someone whom he never spoke with was going to drive several hundred miles with a gun stashed in a hidden compartment in the car door?
The government previously chided Buju's legal team for writing an appeal that read like a well-written magazine article. But it looks like prosecutors tried to borrow a bit of that narrative zest for their latest response, using phrases like "high-stakes deal" to depict Buju as some type of music-making criminal mastermind.
The appellate judges in Atlanta have loads of acrimonious back and forth to wade through before making a decision.
David Oscar Markus, Buju's attorney, says he's still waiting for the appeals court to decide whether it will hear oral arguments in the case.
A final decision should be handed down in about a year.