ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, September 10, 1996 TAG: 9609100057
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
U.S. District Judge James Turk says he still thinks he meted out sufficient punishment to two white men convicted of terrorizing a black motorist, but he resentenced them Monday under orders by an appeals court.
Carlos Lee Bishop and Lewis Terry Jr. went turkey hunting in the Jefferson National Forest in April 1994 and celebrated Bishop's turkey kill that day with a case and a half of beer.
When a black Virginia Tech student passed them on his way to a mountain-bike race, they decided to chase him, and Terry suggested they kill him, his buddy testified.
"And, you know, it just seemed like the thing to do at the time," Bishop, 26, testified last year. "It was just hollering and stuff, you know. Just thought we was doing something great. It was sort of like celebrating, maybe."
Terry, 34, drove as Bishop sat on the windowsill firing his shotgun at Raymond Ellis' truck. They followed him for about five miles and at one point, passed him, turned around and came back. Other cars were caught in the cross fire.
Terry denied threatening Ellis; he testified he thought at first that Bishop was just firing into the air.
Because they were in the national forest, the Roanoke men were charged federally.
Ellis didn't want the publicity from prosecuting under civil rights laws, Assistant U.S. Attorney Don Wolthuis said. So instead, Bishop and Terry were charged with the state crime of malicious shooting into an occupied vehicle, as well with the federal crime of using a firearm during a violent crime. That charge carries a mandatory five-year minimum sentence.
The two men were convicted of both charges. But when he sentenced them last year, Turk dismissed the federal charge. He ruled that it was double jeopardy because the two charges overlapped. Punishing or prosecuting someone twice for the same crime violates the Fifth Amendment.
On appeal, the 4th U.S. Circuit Court of Appeals sided with the prosecution and sent the case back to Turk to resentence them on both charges.
"I'm not convinced by what they said, but I have to abide by what they tell me," Turk told Terry. "It doesn't seem right to me to punish you on [on both charges]. I don't think Congress had in mind this kind of action when they passed the [firearm] law."
The law is most often used against drug dealers. But the appeals court ruled that it "authorizes enhanced punishment for all federal crimes in which a gun is used or carried."
The appeals court said the two laws don't overlap because use of a a gun isn't the only means of shooting into an occupied vehicle; the charge also covers "throwing a missile," such as a rock.
Wolthuis would not comment on Turk's remarks about the law's applicability to the case. But he said the government didn't appeal the sentences specifically to increase Bishop and Terry's prison time.
Because prosecutors use the firearm law often in connection with other charges, the government wanted to clear up the legal question raised by Turk's dismissal of the charges, Wolthuis said. He did not argue for stiffer sentences Monday.
Ellis was not hurt, but his truck was damaged. The two were ordered to pay restitution of $2,870.
Bishop came away from Monday's hearing with the same 25-month sentence he originally received. He was given credit for cooperating with investigators and testifying against Terry. Cooperating with the government is the only way for a defendant to be sentenced below mandatory-minimum sentences.
Wolthuis said Bishop was genuinely remorseful for his drunken behavior and that the government would have had a hard time getting convictions against the pair without his confession.
"I don't want to in any way indicate what you did wasn't serious but I think you've been punished enough," Turk told Bishop.
But Terry, who got a 62-month sentence the first time, got 84 months Monday.
The hunting buddies have had a falling-out since their trip to the national forest. They had to be separated by deputy marshals after Terry spit in Bishop's face before their court appearance Monday.
Terry argued that he was less culpable in the incident because he only drove and wasn't the one firing at Ellis. But he wound up with the longer sentence.
"I will never understand how a man can be less liable for what he did by telling on another man," he told Turk. "I'll never understand."
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