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Federal Prosecutors File New Gun Charges in Kate Steinle Case

SAN FRANCISCO, CA - SEPTEMBER 01:  (R-L) Brad Steinle, Liz Sullivan and Jim Steinle, the family of Kate Steinle who was killed by an undocumented immigrant, look on during a news conference on September 1, 2015 in San Francisco, California. The family of Kate Steinle who was killed by an undocumented immigrant, have filed claims against San Francisco Sheriff Ross Mirkarimi, the Bureau of Land Management and Immigration and Customs Enforcement for their role in their daughter's death.  (Photo by Justin Sullivan/Getty Images)
Brad Steinle, Liz Sullivan and Jim Steinle, the family of Kate Steinle at a news conference on Sept. 1, 2015.
Justin Sullivan/Getty Images

The undocumented Mexican immigrant who was acquitted last week of murdering Kate Steinle was charged on Wednesday by federal prosecutors with multiple counts of gun possession.

Jose Ines Garcia Zarate, who became a poster child for Donald Trump’s campaign on illegal immigration last year, was indicted on one count of being a felon in possession of a firearm and another count of “being an alien illegally and unlawfully in the United States” in possession of a gun, according to the Associated Press. Each charge carries a maximum sentence of ten years.

Garcia Zarate last week was found not guilty of murder in the 2015 killing of Steinle, but was convicted in state court of possession of a firearm in the politically charged case. Steinle’s story rose to national attention after Trump made it a focus of his presidential campaign. Trump used to the case to vindicate his claims that Mexican immigrants were criminals, and his call for a border wall along the United States’ Southern border. As Trump was fond of pointing out, Garcia Zarate had been deported five previous times.

On Monday, Garcia Zarate’s attorneys said they would appeal his state conviction for possession of a firearm, arguing the jury did not receive proper instructions on the charge. “We suspect the conviction on the gun charge is based on [Garcia Zarate’s actions] after the gun went off and he realized it was a gun and dumped it,” said Tamara Aparton, a spokeswoman for the Public Defender’s Office. “If it’s based on that, the jury did not get proper instruction on momentary possession.”

On the murder charges, the jury seemed to side with Garcia Zarate’s defense attorney, who argued that his client found the .40-caliber SIG Sauer semi-automatic pistol—which had previously been stolen from a car belonging to a Bureau of Land Management ranger—on a bench at San Francisco’s Pier 14 and that the gun went off accidentally when he picked it up. At trial, attorney Matt Gonzalez presented grainy video evidence that a group of men had milled around the bench where the shooting had occurred, occasionally appearing to bend down, about 30 minutes before Garcia Zarate arrived there.

The shot that killed Steinle, according to multiple ballistics experts, including those for the prosecution, ricocheted about 12 to 15 feet away from where Zarate was sitting and travelled an approximate additional 72 feet before striking and killing her. As ballistics expert and defense witness James Norris told me earlier this year, it would be “impossible” to intentionally make such a shot. Prosecutors in San Francisco, despite never presenting any motive, charged Garcia Zarate with murder.

After the shot went off, Garcia Zarate picked up the gun and dropped it in the pier, his attorneys say, because he was afraid. They argue his conviction should be vacated, because momentary possession would not necessarily count as unlawful possession. “If you possess it just to dispose of it or abandon it, it wouldn’t be a crime,” Garcia Zarate’s attorney, Matt Gonzalez, told reporters on Monday.

“I believe what the jury did is they convicted him of possessing the firearm after the shooting,” Gonzalez told me in an interview last week, calling it  “kind of a technical conviction.”

It’s unclear whether federal prosecutors intend to try to prove that Garcia Zarate stole the gun and brought it to the pier, or whether they will claim that his possession after the shooting constitutes an unlawful possession. He has never previously been accused in court of that theft.

According to NPR, San Francisco District Attorney George Gascón has rejected criticism from the public defender’s office that his office overcharged Garcia Zarate, while at the same time criticizing Trump and conservative pundits for turning the case into a “political football.” The Associated Press reported that Gascón called the president a “madman” for a series of tweets he wrote after the verdict, in which he called it “disgraceful” and derided Democratic immigration policies.

Other Republicans have also previously taken up that mantle. In pushing legislation to punish sanctuary cities like San Francisco, Speaker of the House Paul Ryan has accused Garcia Zarate of stealing the gun. Attorney general Jeff Sessions, meanwhile, has claimed that Garcia Zarate murdered Steinle “in cold blood.”

In fact, Garcia Zarate landed on the streets of San Francisco as a result of a botched deportation process following his previous release from federal custody for illegal re-entry. He was handed over to local authorities in San Francisco on an outstanding marijuana warrant, but the city chose not to prosecute. Instead of informing federal officials of Garcia Zarate’s release, the city let him go, a decision the county’s former sheriff later attributed to its sanctuary city policies.

Gonzalez blamed the Obama administration for Garcia Zarate’s release, saying that the federal government at the time should have acquired a court order for Garcia Zarate’s removal but was refusing to do so as a way of putting pressure on the city to abandon sanctuary city policies.

“They could have jumped through a very minor hoop of getting an order but they didn’t do that and they don’t do that because they want this requirement to be lifted,” he told me. “They want autonomy to make these choices on their own. That’s the problem. It has nothing to do with the municipality.”

While Garcia Zarate has seven felony convictions for immigration offenses and drug charges, he has never been convicted of a violent crime. “He’s got no violence in his background and he’s never been convicted of a … serious felony,” Gonzalez, his attorney, told me last week.

Garcia Zarate is due to be sentenced for his state gun charges next week. He is facing  up to three years, and has already served most of that time while awaiting trial. His lawyer expected last week that he would be taken into federal custody on violation of probation and eventually deported. “It’s reasonable to assume that he’s headed towards deportation,” Gonzalez told me at the time. “Our contacts in the Mexican consulate are committed to helping him get reestablished in Mexico.”

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