Box cutter case may test new, tougher judicial procedures

Student could receive four-year sentence for airline security breach

October 26, 2003|By Richard B. Schmitt | Richard B. Schmitt,LOS ANGELES TIMES

WASHINGTON - By allegedly planting box cutters and other prohibited items in aircraft lavatories, college student Nathaniel T. Heatwole said he was testing the effectiveness of the nation's aviation safety regime after the Sept. 11, 2001, attacks.

But his case may also become a test of the fairness of tough new charging and sentencing procedures backed by Congress and Attorney General John Ashcroft.

The attorney general has been pushing initiatives to limit the discretion of prosecutors and judges in seeking and imposing sentences. Ashcroft's concern, he has said, is that defendants have been getting a break in certain jurisdictions through plea bargains and other deals, triggering regional disparities that he and others consider fundamentally unfair.

But a lingering question is how the new era of strict enforcement will play out in cases where there are extenuating circumstances.

Heatwole's case may be a proving ground. To some members of Congress and critics of the Transportation Security Administration, the federal agency charged with preventing terrorist attacks on U.S. aviation, the 20-year-old college student performed a public service by showing that it was possible to smuggle potential weapons past airport screeners and onto airplanes. The government, they say, should learn from Heatwole rather than punish him.

Already, the TSA has revised its procedures for handling tips and complaints it receives from the public. Those revisions were made last week after it became known, through court documents released Monday, that Heatwole had sent the TSA a signed e-mail message Sept. 15 claiming to have smuggled box cutters and other items past airport security on six occasions this year. Officials took note of the message only after some of those items were found hidden on two planes - four weeks after the e-mail was sent.

"The work of this well-intentioned college student exposes serious flaws in America's passenger plane security," said Rep. Edward J. Markey, a Massachusetts Democrat. "As a punishment for breaking the law, this college student should be sentenced to working 20 hours a week for the TSA."

Should prosecutors choose to be aggressive, however, Heatwole could face nearly four years in prison if convicted, lawyers familiar with the federal sentencing guidelines said. If Heatwole had a previous criminal history, he could face up to 10 years - the statutory maximum for the charge he faces, carrying a concealed dangerous weapon onto an airplane.

Ashcroft's crackdown "comes at a bad time for a defendant like him," said Mark Allenbaugh, a Washington defense lawyer and former attorney with the U.S. Sentencing Commission, which sets the sentencing guidelines. "Especially because it is such a high-profile case, it is going to be hard for everyone to get on board and agree not to follow the guidelines." The result, he said, is apt to be a tough sentence.

Heatwole, of Damascus, was arrested Monday, charged in federal court in Baltimore and released by a federal magistrate on his own recognizance. Days earlier, federal officials had called an emergency sweep of the nation's air fleet for hidden weapons, triggered by the discovery Oct. 16 of plastic bags containing box cutters, matches and molding clay aboard two Southwest Airlines jets.

According to an FBI affidavit filed in the case, Heatwole admitted smuggling the paraphernalia aboard the jets and said he aimed to illustrate holes in the nation's air safety system.

Heatwole's attorney, Charles Leeper of Washington, declined through an assistant to comment on the case.

Federal prosecutors said any discussion of sentencing was premature. "It is early in the investigation," said Vickie LeDuc, a spokeswoman for the U.S. attorney's office in Baltimore, which is overseeing the case, adding that the issues to be weighed in setting any sentence are "complex."

In April, Congress approved Justice Department-supported legislation that puts new restrictions on the ability of federal judges to impose sentences that are softer than those prescribed by federal guidelines, even if they feel that the guidelines would be overly punitive under the circumstances.

The Justice Department subsequently began compiling a running list of cases in which judges strayed from the guidelines. Last month, officials adopted additional new procedures requiring prosecutors to seek the "most serious readily provable offense" in cases and took other steps to limit prosecutors' ability to strike plea bargains with lesser sentences.

Heatwole's case could have a range of outcomes, depending on how aggressively the government pursues the case against him.

Some defendants facing the same charge as Heatwole would typically receive a sentence of four to 10 months if convicted, assuming that they have no criminal record. A defendant who persuaded prosecutors that he accepted "full responsibility" for his actions could avoid jail altogether and be sentenced to probation, according to Allenbaugh and other attorneys familiar with the guidelines.

But Heatwole could also face a much stiffer penalty - 37 months to 46 months - if prosecutors decided the offense was committed "willfully" and "with reckless disregard for the safety of human life."

The Los Angeles Times is a Tribune Publishing newspaper.

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