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Appeals Court Overturns Part of Federal 3-Strikes Law

August 04, 1998| From Associated Press

SAN FRANCISCO — A federal appeals court overturned part of the federal three-strikes sentencing law Monday, saying it wrongly requires previously convicted robbers to prove convincingly that they were unarmed and did not injure their victims seriously.

The 2-1 ruling by the U.S. 9th Circuit Court of Appeals, in a case from Hawaii, applies only to the 1994 federal law and not to state three-strikes laws, which lack similar burden of proof provisions and are much more widely used.

In a different case, another federal appeals court based in Chicago upheld the same law last year. Both lawyers in Monday's case predicted that the government would appeal.

The federal law applies to defendants charged with certain violent crimes in federal court, which has jurisdiction over crimes on federal land, crimes against federal officials, and a limited number of other crimes--most important, bank robbery, because banks are federally insured. If the defendant has previously been convicted of two serious, violent felonies in either federal or state court, the new conviction carries a mandatory sentence of life without parole.

In the case before the court, Bryan K. Kaluna, convicted of a 1995 bank robbery in Honolulu, had a previous conviction of first-degree armed robbery and seven convictions of second-degree robbery, which did not specify whether he was armed, his lawyer said. Age 33 at the time of sentencing, he faced a term of about 15 to 20 years without the three-strikes law, the court said.

Kaluna's case was the first in Hawaii prosecuted under the federal three-strikes law, and only one other such charge has since been filed, said Assistant U.S. Atty. Larry Butrick. Kaluna's lawyer, Alexander Silvert, chief assistant in the federal public defender's office, said use of the law is increasing but so far only about 20 prosecutions have been completed nationwide.

"It's a great day for due process and the Constitution," Silvert said.

Butrick disagreed, noting that courts have upheld some other laws requiring proof from the defense, such as bail on certain charges and insanity.

The ruling bars use of the law against Kaluna or anyone else whose previous strikes were either robberies or several other crimes, such as certain types of assaults. The court left intact other sections of the law that treat 12 specified crimes, including murder, voluntary manslaughter, rape, air piracy and carjacking, as strikes.

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