-By ERIC T. BERKMAN
It’s never easy to fight the government all the way to the U.S. Supreme Court, especially when your clients aren’texactly innocent. It’s even harder when six out of seven federal circuits have already ruled against your position. That’s the task Timothy P. O’Connell and Leslie Feldman-Rumpler faced when federal prosecutors tried to nail their clients with a 30-year minimum sentence for a charge the government acknowledged it couldn’t prove beyond a reasonable doubt.
The clients had been caught attempting to rob an armored car at gunpoint as it was making a delivery to a Boston-area bank. Police subsequently seized three loaded firearms, including a handgun that had been converted to an automatic weapon. A grand jury indicted the defendants on multiple counts, including carrying a machine gun during a violent crime, which carries a mandatory minimum of 30 years in prison. Though the defendants pleaded guilty on several other counts, prosecutors dropped the machine-gun charge because they knew they couldn’t prove it to a jury.
Instead, the government pressed the court to treat it as a mere sentencing factor, which would enable the judge — rather than a jury —to determine the issue by a preponderance-of-the-evidence standard.
According to the government, the machine-gun provision became a sentencing factor in 1998, when Congress shifted language in Title 18 U.S.C. sec. 924(c), which lays out mandatory minimums in federal drug and robbery cases involving firearms.
Both U.S. District Court Judge Mark L. Wolf and the 1st U.S. Circuit Court of Appeals rejected the government’s argument. But when the prosecution decided to take the matter to the Supreme Court, Feldman-Rumpler and O’Connell were far from confident.
“By the time we got up there, we were pretty apprehensive about what could happen, seeing as we were the minority in a 6-1 split,” Feldman-Rumpler says.
“But as the government began its argument, we could see that the court was extremely unreceptive, which surprised me. And we came out of the argument feeling good.”
Their instincts were correct. In its decision in United States v. O’Brien, et al., the court unanimously rejected the government’s position that the machine-gun provision was a sentencing factor, holding instead that it was an element of a crime that must be proven to a jury beyond a reasonable doubt. O’Connell calls the ruling “a massive overturning.”
“Those of us in the legal community can’t believe it because the difference between an element and a sentencing factor is extremely significant,” he says.
This article was previously published in Massachusetts Lawyers Weekly.
Timothy O’Connell on …
His most memorable moment at law school: “When I was in law school, the Watergate hearings were going on. I’d watch them when I came home from class in the afternoon. That was absolutely fascinating to me.”
Education: Suffolk University Law School (1974); Merrimack College (1971)
Bar admission: 1975
Professional experience: Sole practitioner, Law Office of Timothy P. O’Connell, Charlestown (1987-present); Suffolk County Juvenile and Youthful Offender regional coordinator (1998-2002); partner, Cullen & O’Connell, Boston (1983-1987); sole practitioner (1975-1983)
Highlight of his legal career: “Being 3 feet away from the Supreme Court justices last February when this case was argued.”
One thing about him that might surprise other people: “My taste in music.
I love Frank Sinatra, classical and jazz.”
Favorite book or film: “My favorite books are Dennis Lehane’s books, and my favorite film is ‘The Town.’”
What has kept him in the practice of law: “Every now and then you’re able to make sure the scales of justice end up even. In fact, I had a client come up to me that I represented years ago. He reintroduced himself and told me he was getting sworn into the Massachusetts bar next month. That kind of stuff keeps me in it.”
acing:-ltm(JC0Canguage: EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA’>Then the noise- from all his boys – began to settle down.
They’d grown to men – they married, then – some moved from CharLESStown.
Now some were gray – but on Saturday – a visit they’d extend
To hoist a beer – to bend an ear – for an hour with their friend.
And a funny thing – many bring – a son to sit with Jack.
And then they’d say – as they did yesterday – “Take some off the back.”
And the little boy – is filled with joy – as The Barber spins his tales
Of daddy’s feats – in football cleats – the stories never fail.
Then the curtain drops – in the Barber’s shop – and the father goes away,
With his happy son – the visit’s done – he hears his young boy say,
“I’m just a lad – but someday, dad – when I’m as old as you,
I’ll know a guy – my son and I – can visit like we do.”
Jack “The Barber” Luiselli, sadly, passed away a few years ago, but he will forever live in the hearts of those who had the good fortune to have known him.