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Powell, Koon Surrender to Begin Prison Sentences

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TIMES STAFF WRITER

Laurence M. Powell and Stacey C. Koon surrendered to federal prison authorities Tuesday, ending their long effort to avoid incarceration and beginning their 30-month sentences for violating the civil rights of Rodney G. King.

After spending a final weekend with their families, Koon and Powell arrived at the Federal Prison Camp in Dublin, Calif., at 11:50 a.m., just before the noon deadline. Neither had any comment, but in Los Angeles, their lawyers said the two men were resigned to their fate.

“He’s certainly sad to be leaving his wife and five children,” said Ira Salzman, one of Koon’s lawyers. “But he’s got a clear conscience. He told the truth.”

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Koon had a farewell party with a small group of friends before leaving to turn himself in. Some of those who attended said the affair was pleasant and Koon appeared relaxed. Powell, however, has been harder hit by his impending prison stay. He has gained weight in recent months and was bitterly disappointed when the U.S. Supreme Court last week denied his request to remain free on bail while he pursues his appeals.

“He’s more unhappy than he ever was during this whole process,” said Michael P. Stone, one of Powell’s lawyers. “He knows now that there’s going to be no eleventh-hour reprieve. This is the real thing.”

As the two men begin serving their sentences, lawyers on both sides of the case are preparing to challenge its outcome in the federal appellate courts.

The defendants will try to convince the U.S. 9th Circuit Court of Appeals that they were improperly convicted, while prosecutors will ask the same court to reconsider the Los Angeles Police officers’ sentences, which the government believes were too lenient.

Legal experts say each challenge has some chance of success, and the 9th Circuit Court has set a briefing schedule that probably will result in arguments early next year.

Although a number of issues are at stake in each appeal, most experts agree that the defense argument will rest largely on the prosecution’s use of videotaped testimony by Officer Theodore J. Briseno. Briseno--who along with Officer Timothy E. Wind was acquitted of violating King’s civil rights--did not take the stand in the federal trial.

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He did testify during last year’s state trial of the officers, however, telling jurors in that case that Powell struck King in the head with his baton and that Koon should have stopped the beating. Prosecutors introduced an edited videotape of that testimony in the federal case over the objections of defense attorneys.

On appeal, lawyers for Koon and Powell are expected to raise a host of objections to the use of that videotape. They will argue, for instance, that prosecutors used Briseno’s testimony to convict Koon and Powell even though the government lawyers maintained that Briseno had committed perjury in the Simi Valley trial.

In addition, they are expected to argue that Briseno’s state court testimony was influenced by his reading of statements that his colleagues were forced to give to police internal affairs investigators. Those statements cannot be used against any defendant because the 5th Amendment protects defendants from being compelled to testify against themselves.

The issues surrounding the use of the Briseno tape “constitute the strongest grounds for the defendants on appeal,” said Peter Arenella, a UCLA law professor.

Stone agreed. “That’s really the main issue,” he said. “If the appellate court decides against us on that, we’re dead.”

In addition to issues surrounding the videotape, lawyers for the officers also expect to raise questions about the instructions given to the jury, about motions for severance that were denied and about issues related to the fact that the officers were tried twice for their actions against King.

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For their part, prosecutors already have filed notice that they intend to appeal the 30-month sentences that U.S. District Judge John G. Davies imposed on Koon and Powell. Although prosecutors have not spelled out the grounds for their appeal, they are expected to challenge the degree to which Davies departed from federal sentencing guidelines in imposing sentences on the officers.

Among other things, Davies found that King’s conduct substantially provoked the officers into committing the illegal beating. But Davies’ logic has been questioned by some experts because he also found that King had stopped resisting about five seconds before officers struck the first illegal blow.

Davies also ruled that the second trial of the officers--all four were found not guilty in state court--created a “specter of unfairness.” Legal experts questioned that reasoning, since federal courts have long upheld the federal government’s right to bring a civil rights prosecution even if a defendant has been acquitted in state court.

Laurie Levenson, a Loyola University law professor and former federal prosecutor, said she also would expect the government lawyers to challenge some of Davies’ other grounds for reducing the sentences. Those included findings that the officers would incur additional punishment at Los Angeles Police Department disciplinary hearings and that Koon and Powell would be especially vulnerable to abuse in prison.

The government’s appeal of the sentence means that Koon and Powell enter prison without a clear sense of when they will go free. Federal prisoners no longer are entitled to parole, but they can receive a 15% reduction in their sentences for good behavior.

That would mean Koon and Powell could be released in late 1995. But if the prosecution prevails in its sentencing appeal, their terms could be increased.

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The surrender of Koon and Powell on Tuesday ended a hard fight to remain free on bail while their lawyers and the government attorneys pursued appeals. During their sentencing Aug. 4, Davies denied that request, and his ruling was upheld by a panel of 9th Circuit Court judges.

Then, just hours before the two men were scheduled to begin serving their sentences last month, Davies granted them a short extension while they asked the U.S. Supreme Court to consider the bail issue. The Supreme Court, however, refused to hear the bail issue, forcing the two defendants to begin serving their time.

Their lawyers remain concerned that the two men could serve a substantial portion of their sentences, only to then have their convictions overturned.

“That would be the ultimate injustice,” Salzman said. “By the time the Supreme Court ruled on their case, they could already have finished serving their time.”

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