A theory on federal action in the James Kilgore sentencing.

The June 30, 2003 Sentencing of James Kilgore on federal passport fraud and possession on unlicensed explosives was delayed until October 26, 2003. The shoe on the other foot dropped when the scheduled August 15 Sacramento sentencing of Kilgore on the Opsahl murder was delayed until October 31, 2003 (the anniversary of the Soliah/Olson “flip flop” plea, but it’s also a Friday.) Is there something to this or just a co-incidence? Frankly, I don’t know, but now Sacramento sentencing has been delayed I will more publicly offer my views.

In May 2003, James Kilgore unconditionally offered a guilty plea to the fed charges. In the fed system this is extremely unusual. The vast majority of fed charges never make it to trial but an arranged plea bargain is made. Current fed sentencing has no parole and no time off for good behavior. Thus, if you get sentenced to ‘X” years you serve the full “X” year. This is unlike the system in California where you get time off for good behavior. In the case of Kilgore’s California sentence he will be sentenced to 6/3 years. This means that he is sentenced to six years but this will be reduced to three years with good behavior. The feds have no such time off for good behavior. If you are currently sentenced to “X” years, you serve the full “X” years. Once a sentence is given the leverage is classification and prison placement. “Club Fed”, in a relative sense, does exist but the “higher security” fed prisons can be far less comfortable.

Complicating, factors is the treaty by which James Kilgore was extradited from South Africa. This is one of the first high profile applications of the treaty. The treaty requires that all potential charges and potential penalties are listed. The big concern in a lot of countries is the death penalty (which is not possible here) but it also tends to stop a “bait and switch”. This extradition treaty is essentially a “gentleman’s agreement” but it tends to be abided by since the treaty might be needed for “bigger fish” in the future.

Thus, baring any great revelation (which I don’t expect) the feds can sentence Kilgore to up to five years for passport fraud and up to ten years for possession of an unlicensed explosive device. This makes for up to fifteen years. Then, after  the fed sentence Kilgore would serve the California 6/3 year sentence.  Once the sentence is set a Presidential pardon is the only form of reduction. It would need to be a full pardon since Kilgore has agreed to serve 6/3 for involvement in the Opsahl murder. Let’s do the math. Let’s say Kilgore gets time off for time served (normal). A fifteen year fed term would end in late 2017 and then there would be another three years (with good behavior) to serve in California so Kilgore would be out of CA prison in late 2020 and off parole supervision in late 2323.

To put this in perspective, under this scenario Kilgore’s two now pre-teen sons would be approaching age 30 by the time they could hug their father again outside of a prison. Now, I don’t expect an eventual sentence that long but that is what the feds could do without violating the letter and spirit of the extradition agreement. 

The next “monkey wrench in the works” was a June 26, 2003 US Supreme Court ruling Stogner versus California. This involved extension of the statute of limitations for statutory rape which was ruled invalid by the US Supreme Court. Essentially, the law aimed to charge pedophiles, mostly priests, with criminal charges for acts that occurred after the statute of limitations expired. The US Supreme Court ruled it invalid. No child molestation claims with the SLA, so don’t go there. 

News stories of the Stogner versus California US Supreme Court decision speculated that this USSC ruling would invalidate parts of the “Patriot Act”. The so-called “Patriot Act” was passed six weeks after the 9-11 attack. The part of we are interested in is the retroactive statute of limitations extension for “terrorist actions”. This has not yet been tested in court but the SLA were indeed a terrorist group, having declared war on the US. The “New World Liberation Front” successor to the SLA was essentially an extension of the same group. The NWLF had well in excess of fifty bombings after the May 1974 LA shootout that gutted the original SLA. (note: for precedent, after the KKK was gutted in the 1960’s they reorganized with different names but a lot of court rulings said they were still they same group so plenty of precedent there.).

Kilgore’s sentencing, scheduled four days after the US Supreme Court decision was delayed until October 26, 2003. This is speculation but why might this have happened?

One theory I have is this Kilgore was “singing” but the usefulness of his information leading to prosecution could be invalidated by the Stogner decision if this also affected the Patriot Act statute of limitations extension. If so, and if Kilgore was “singing” the information he could provide to the feds would be useless to them for prosecution. Thus, the delay to figure this out. 

An interesting aspect this is the so-called “leave the state, stop the clock.” provision in state extradition statutes. This, unfortunately, is a state, not a federal law which could involve Kilgore potentially “singing”. This would sentencing difficult since Bill Harris and Emily Montague Harris has resided in California since their original prison release allowing them to get off “Scott free” (pun intended) while others could be prosecuted but it would have to be a California, not fed prosecution. 

Federal Attorney General John Ashcroft personally sent out a press release on the Kilgore arrest making it “high profile”. It should be interesting how it turn out. Personally, I like James Kilgore but he seems to have suffered form bad legal advice, bad timing and bad luck. I personally like the guy, my old (potential) 1977 drinking companion. The advice I gave him in several Soliah.com “open letters” was, to me valid but it needed to be acted upon in a timely manner to be effective. I hope this can be worked out and he can be reunited with his family soon outside of prison.

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Last updated August 19, 2003