Does Punishment Fit the Crime?
He turned in gun, now faces deportation
Tom Schoenberg
Legal Times
January 24, 2000

It turned out to be the most fateful detour of bus driver Elwyn Lehman’s life.

One year ago, Lehman was driving gospel singer CeCe Winans and her family from Philadelphia to the District for a show at the MCI Center, when the gospel diva got the last-minute approval for a special tour of the White House.

As Lehman pulled up to the gates of 1600 Pennsylvania Ave., a Secret Service agent met the bus and ordered everyone off so he could conduct the customary search of the vehicle. Lehman stepped out carrying two Tupperware containers that, only moments before, he remembered were on board.

One contained bullets, the other was empty. Lehman told the officer that the empty container had held a handgun, which was still on the bus.

Lehman thought he was doing the right thing by telling the officer about the gun.

He was wrong.

Within seconds, Secret Service officers confiscated the .25-caliber semiautomatic pistol from a drawer next to the driver’s seat and handcuffed Lehman.

At that point, an officer approached Winans’ entourage and asked if they had another driver because Lehman was going to jail.

“I was shocked,” says Andrew Dixon, Winans’ tour manager, adding that he did not know Lehman had a weapon on the bus.

Lehman was rushed to the D.C. Jail, where he was charged with possession of an unregistered firearm, possession of unregistered ammunition, and attempt to carry a pistol without a license.

The U.S. attorney’s office gave Lehman credit for what they considered a good faith effort to turn the gun over. They charged him with misdemeanors, rather than felonies, and even offered him a deal.

While the details of the government’s offer are unknown, jail time isn’t the only thing that worries Lehman, who has no prior criminal record, according to the D.C. Pretrial Services Agency. The 53-year-old bus driver is a Canadian citizen who has been living in the United States for 15 years.

Under federal immigration laws, foreigners convicted of any gun crime — no matter how minor — face automatic deportation.

Out of options, Lehman is set to take his chances with a D.C. Superior Court jury this week in a case that highlights what can happen when a seemingly well-meaning person lands in the cross hairs of the justice system. If convicted, Lehman faces a maximum penalty of two and a half years in prison — and, of course, deportation.

“Given that the prosecutor chose not to use prosecutorial discretion, we are left with unappetizing choices,” says Webster Knight, Lehman’s criminal defense lawyer. Lehman declines comment.

HARD LINE ON GUNS
According to Channing Phillips, a spokesman for the U.S. attorney’s office, his office will prosecute any gun offense in the District, regardless of whether the person was aware of the city’s laws.

“Because the District of Columbia, which has one of the strictest gun laws in the country, continues to be plagued by an alarmingly high rate of gun violence, the U.S. attorney’s office has long had a no drop and zero tolerance policy regarding persons found in illegal possession of firearms,” Phillips said in a statement.

Knight and immigration lawyers point out that even more damaging to Lehman are the country’s immigration laws, which have made it easier for the government to deport aliens convicted of crimes.

“Congress broadened the definition of what makes an immigrant deportable,” says Angela Kelley, deputy director of the National Immigration Forum, which advocates for less-stringent deportation laws.

The statute requiring deportation proceedings for immigrants convicted of gun crimes has been around for four decades. Until 1997, however, immigration judges could take into account the person’s background, criminal record, and the circumstances surrounding the crime — if the alien had lived in the United States for more than seven years — before deciding whether the person should be deported.

But the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 took away that judicial discretion and, instead, placed more authority in the hands of the Immigration and Naturalization Service. Although INS lawyers have the discretion to drop cases, several immigration lawyers say they rarely do.

“It’s like mandatory sentencing,” says Michael Maggio, a partner at D.C.’s Maggio and Kattar. “Congress has taken common sense and human heart out of the criminal justice system.”

Frederic Schwartz Jr., Lehman’s immigration lawyer, says it’s irrelevant to the INS that his client had no intention to commit a crime.

“There is no administrative discretion on the part of INS to, in essence, not process a case based on their view of the merits,” Schwartz says. “Our view is he didn’t commit a crime.”

Bill Strassberger, an INS spokesmen, says the agency is working on guidelines to clarify their lawyers’ discretion in such cases.

Lehman’s immigration status is further hampered by the fact that he has no family ties to the United States. The Vancouver native was once married to an American, but the couple divorced in 1988.

Knight is trying to get two of the gun counts kicked out by arguing that Lehman should be immune from prosecution because he was turning the gun over to authorities.

The government counters that in order to be granted immunity, a person must turn an unloaded weapon over to the D.C. police at one of its stations or at the person’s place of business. Because Lehman relinquished the gun to a Secret Service agent, he is not eligible for forgiveness, argues Assistant U.S. Attorney Alyse Graham. Furthermore, the gun was loaded with three rounds of ammunition, she states in the motion.

Knight argues that the bus is Lehman’s place of business and should trigger the gun immunity law. Graham, who declines comment, disputes that characterization in court papers.

Judge Linda Turner Hamilton is expected to rule on the immunity motion prior to the scheduled Jan. 25 trial.

Regardless of the judge’s decision, Knight must convince a D.C. jury that Lehman made an honest mistake and should not be punished for it.

Since at least 1996, Lehman, who lives in Lebanon, Tenn., has worked as a bus driver for musicians touring the country.

The series of events that led to his arrest began in mid-December 1998. Lehman was on his way home from a tour with the Four Tops. After dropping the band off, he pulled over at a truck stop in Kentucky.

It was then, Lehman claims, that a man approached him and demanded that he purchase the gun and bullets for $20. In court papers, Knight says that “it was a deal he did not think he should refuse” because he feared the man would rob him.

In court papers, Lehman says that he intended to turn the gun over to police at the first opportunity he had. But as soon as he got home, he flew to Canada to visit his mother. When he returned, shortly before Christmas, he immediately left for his job with Winans.

Lehman has at least one supporter. Dixon, Winans’ manager, spent five months on the road with Lehman and was there the day of the arrest. Dixon says Lehman is a good person who should not be punished for trying to do the right thing.

Winans, Dixon says, was upset because she didn’t want “any trouble that would make her name appear in a bad light.” But Dixon adds that she did not blame Lehman. In fact, Lehman continued driving the tour once he was released from jail.

“I told him that I would do anything in my ability to help him,” says Dixon, adding that he has not been asked to testify by either Lehman or the government. “I can’t believe they would arrest him for trying to turn this gun over.”

Copyright ?2000 NLP IP Company — American Lawyer Media.