|
|
|
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION UNITED STATES OF AMERICA : : v. : Criminal No. W-93-CR-046 : BRAD EUGENE BRANCH (2), : KEVIN WHITECLIFF (3), : CLIVE DOYLE (4), : JAMIE CASTILLO (5), : LIVINGSTON FAGAN (6), : PAUL GORDON FATTA (7), : GRAEME LEONARD CRADDOCK (10), : RENOS AVRAAM (11), and : RUTH OTTMAN RIDDLE (12), : Defendants. : SENTENCING FINDINGS AND OPINION On February 28, 1993, an American tragedy of epic proportions took place near the community of Elk in Central Texas. The following sets forth the Court's findings, made by a preponderance of the evidence. On, before, and after February 28, serious mistakes were made. Defense arguments at trial were that serious mistakes in judgment, particularly whether to proceed with execution of the search warrant after the element of surprise had been lost, were made by some in leadership roles of the Bureau of Alcohol, Tobacco and Firearms. Those allegations are not before this Court in this case, and are not deemed relevant in determining issues now before the court. The mistakes made by the Defendants now before the Court, and their co-conspirators, however, were serious violations of federal criminal law, and resulted in the homicide of four young agents, the injury of numerous other agents, and the deaths of page 1 numerous residents of the building referred to during the trial as the "Compound." These Defendants, and other adult Branch Davidians, engaged in a conspiracy to cause the deaths of federal agents. It was a part of the beliefs of the Branch Davidians, expressed and taught by their leader, that they must bring about a violent conflict with federal agents, thereby forcing the agents to use deadly force against them, and by dying in the ensuing battle to be "translated" immediately to Heaven. To this end, immense preparations were made. Huge sums were fraudulently charged to many credit cards in order to acquire an armory that would rival that of a National Guard unit's; ammunition in an unbelievable quantity was acquired; para- military uniforms and gear were purchased and created by Davidian seamstresses; firearm training and fortification of the Compound took place; the leader preached sermons to motivate his "army";and finally preparations for the ambush of February 28 were completed. At about 9:00 a.m. on that fateful morning, as agents attempted to execute a lawful search warrant, the first shots were fired from inside the front door of the Compound, wounding Agent Ballesteros in his hand. Immediately thereafter, countless shots were fired from many locations in different areas of the Compound, and a gun battle lasting approximately two and one-half hours ensued. Thereafter, for 51 days these Defendants and their co- conspirators defied federal authority and refused to surrender. Finally, by a combination of suicide and murder inflicted by Davidian upon Davidian, all but a handful of the Davidians were killed. Defendants Branch, Whitecliff, Castillo, Fagan, and Avraam stand convicted of aiding and abetting in the voluntary manslaughter of four federal agents, and in using or carrying a firearm during the commission of an act of violence. Defendant Craddock stands page 2 convicted of possession of an unregistered grenade and in using or carrying a firearm during the commission of an act of violence. Defendant Riddle stands convicted of using or carrying a firearm during the commission of an act of violence. Defendant Fatta stands convicted of two counts of possessing illegal firearms. The primary issue to be determined is whether the mandatory consecutive sentence to be applied to the "using or carrying" count is five years or 30 years. No previous decision deciding this issue can be located by the Court or by counsel. Both the Defendants and the Government have offered able briefs to aid the Court in this determination. The task faced is to determine what answer the Fifth Circuit Court of Appeals would give, in the first instance and the Supreme Court, if it elects to answer, in the second instance. This Court must decide this legal issue without being influenced by the result that will be mandated, and then apply the Sentencing Guidelines. The first question to be answered is whether the Defendants can be charged with using or carrying an enhanced weapon. Obviously, Graeme Craddock was convicted of possessing an explosive device. The others, however, were not, but there was credible evidence that Riddle and Castillo actually possessed an enhanced weapon. (There is no evidence that any short-barrelled firearms were possessed). By its verdict convicting the Defendants of violating Section 924(c)(1), the jury found that they were members of a conspiracy to murder federal agents and that they used or carried a firearm during and in relation to this crime of violence. To determine the appropriate sentence to impose, it is incumbent upon the Court to determine the facts as to the type of firearm or destructive device used or carried by the Defendants by a preponderance of the evidence. _McMillan v. Pennsylvania_, 477 U.S. at 91; _United States v,_ page 3 _Casto,_ 889 F.2d 562, 570 (5th Cir.); _cert. denied_, ____ U.S. ____, 110 S.Ct. 1164 (1989). Under the statute, the term "used" is not confined to situations where a court must find actual or constructive possession. _United States v. Long_ 905 F.2d 1572, 1576 & n. 6 (D.C. Cir.) ("use is properly susceptible of a broader interpretation than "carry"), _ cert. denied_, ___U.S.___, 111 S.Ct. 365 (1990); _United States v. Edun_, 890 F.2d 983, 987 (7th Cir. 1989). In its most widely understood application, the terms "used" or "uses" embrace the discharge of, assault with, or brandishing of a firearm during the commission of a felony or to avoid subsequent arrest. _See_, _e.g._, _Busic v. United States_, 446 U.S. 398 (1980) (attempted robbery at gunpoint and discharging pistol in battle with DEA agents); _United States v. Molina-Uribe_, 853 F.2d 1193 (5th Cir. 1988)(killing undercover DEA agent with his own weapon during a drug buy), _cert. denied_, 489 U.S. 1022 (1989); _United States v. Alvarez_, 755 F.2d 830 (11th Cir.) (killing one undercover ATF agent and wounding another during drug transaction), _cert. denied_, 474 U.S. 905 (1985); _United States v. Chilcote_, 724 F.2d 1498, 1505 (11th Cir.)(pointing pistol at DEA agent attempting to effect arrest), _cert. denied_, 467 U.S 1218 (1984). The courts have, however, repeatedly held that a "defendant can use a firearm within the meaning of [ASCII character 21, paragraph symbol, deleted] 924(c)(1) without firing, brandishing or displaying it." _United States v. Ross_, 920 F.2d at 1536, quoting _United States v. McKinnell, 888 F.2d 660, 674-75 (10th Cir. 1989); _United States v. Thomas, 12 F.3d 1350, 1361-62 (5th Cir. 1993) (firearm found in a zippered bag in second floor closet) _see_ _e.g._, _United States v. Brown_, 915 F.2d 219, 225 (6th Cir. 1990); _United States v. Lyman_, 892 F.2d 751, 753 (8th Cir. 1989) (quoting legislative history), _cert. denied_, ___ U.S. ___, 111 S.Ct. 45 (1990); _United States v. Rosado_, 866 F.2d 967, 969 (7th Cir.), _cert. denied_, ___ U.S. ___, 110 S.Ct. 117 (1989). page 4 In fact, where firearms are not found on the person of the Defendant, but are found on the premises "readily available in strategic locations," the courts have applied the "fortress theory" in sustaining convictions and sentences for violations of Section 924(c)(1). _United States v. Wilson_, 884 F.2d 174, 177 (5th Cir. 1989) (where predicate offense was a drug violation); _United States v. Robinson_, 857 F.2d 1006, 1010 (5th Cir. 1988) (same); _see United States v Matra_, 841 F.2d 837, 843 (8th Cir. 1988) (same). In the above cases, the evidence established that the firearms were intended to protect drugs or otherwise facilitate drug transactions, and accordingly, the firearms were considered to have been used by the defendant(s) "during and in relation to" the underlying drug trafficking crime. In _Matra_, the defendant argued that the language of {ASCII character 21, paragraph symbol, deleted} 924(c)(1) precluded conviction unless the United States established that the defendant actually possessed weapons during the drug transaction. In rejecting such a narrow interpretation of {ASCII character 21, paragraph symbol, deleted} 924(c)(1) the Court of Appeals for the Eighth Circuit used a military analogy to support its holding. As the Court noted, military installations keep weapons readily available to defend against potential enemy attack; so, too, may weapons be kept ready to protect a drug house, thereby safeguarding and facilitating illegal drug transactions. Matra's house was described as a veritable fortress, having only one usable entrance, which could easily be guarded from a second- story window. The Court found that although Matra did not have actual possession of the machinegun or the other firearms, he did have ready access to them. Even though Matra did not brandish or discharge a weapon, the court concluded that the weapons were an integral part of his criminal undertaking and their availability increased the likelihood that the criminal undertaking would succeed. In the court's view, it would defy logic and common sense to page 5 conclude Matra did not "use" the machinegun within the meaning of 924(c)(1) during and in relation to his underlying offense. Such reasoning would clearly be applicable to the facts in this case. The evidence established the existence of not only a figurative but a literal fortress, manned by each of the Defendants convicted on this count. Each either had actual or constructive possession of the numerous fully automatic weapons and hand grenades present in the Compound before February 28, 1993 and through the 51 day siege. The Court heard the evidence at trial and recalls that from the ashes throughout the Compound and the vehicles immediately around it, 48 machineguns were found--46 complete firearms and 2 modified lower receivers. An examination of these and other weapons found at the Compound and admitted into evidence establishes that many of these weapons were equipped with silencers. Additionally, four live hand grenades -- destructive devices under Section 924(c) -- and numerous exploded fragments were discovered in the search of the Compound after the fire. The testimony established that all of these Defendants stood guard, with orders to fire should the FBI agents attempt entry, and that guns were available at each guard position. Numerous witnesses testified to the use of automatic weapons during the February 28th firefight with ATF agents and that was corroborated by the identification by Special Agent James Cadigan, a firearms expert, of fully automatic weapon fire on the video recordings made on that date. The fortress theory demonstrates by analogy that when evaluating whether a firearm was carried in relation to an offense, a defendant's intentions as he engaged in the precise conduct that comprised the predicate offense should not be the sole focus. _United States v. Brown_, 915 F.2d 219, 224-25 (6th Cir. 1990). Rather, the totality of circumstances page 6 surrounding the commission of the crime must be examined:" the emboldened sallying forth, the execution of the transaction, the escape, and the likely response to contingencies that might have arisen during the commission of the crime." _Brown_, 915 F.2d at 226. In fortress type cases, the sheer volume of weapons makes reasonable the interference that the weapons involved were carried in relation to the predicate offense since they increase the likelihood that the offense will succeed. _Wilson_, 884 F.2d at 177. Additionally, a defendant may be convicted of a violation of {ASCII character 21, paragraph symbol, deleted} 924(c)(1) under the doctrine of _Pinkerton v. United States_, 328 U.S. 640 (1946), where a co-conspirator carried a firearm in the furtherance of the criminal scheme and that action was reasonably foreseeable. _United States v. Elwood_, 993 F.2d 1146, 1151 (5th Cir. 1993) (defendant convicted of Section 924(c) violation where his codefendant carried the weapon). _United States v. Capote- Capote_, 946 F.2d 1100, 1104 (5th Cir. 1991)(defendant found to have possessed machinegun even though not present in area where it was found). _See_ _United States v Johnson_, 886 F.2d 1120, 1123 (9th Cir. 1989), _cert. denied_, 494 U.S. 1989 (1990); _United States v. Golter_, 880 F.2d 91, 93-94 (8th Cir. 1989); _United States v. Gironda_, 758 F.2d 1201, 1214 (7th Cir.), _cert. denied_, 474 U.S. 1004 (1985); _see also_ _United States v. Cummings_, 937 F.2d 941, 944 (4th Cir.) (collecting cases), _cert. denied_, ___ U.S. ___, 112 S.Ct. 395 (1991). The evidence at trial established and the Court finds that Defendants Ruth Riddle and Renos Avraam had actual possession of a machinegun between February 28th and April 19th and that Graeme Craddock had actual possession of a destructive device on April 19th. It was further established that the weapons were displayed openly at the "chapel" and actually issued to members with all the "congregation" present. Weapons and violent confrontation were an integral part of the Message, and they were actually used to confront page 7 and repel law enforcement agents on February 28th and April 19th. Consequently, all of the Defendants convicted on Count Three should be held accountable under _Pinkerton_ for using and carrying machineguns, destructive devices and silencers during their conspiracy to murder federal officers. Next, the jury, by convicting on Counts Three, Seven, Nine and Ten, found that some of the Defendants used or carried 30-year enhanced weapons during the period of the conspiracy, and the Court concurs. As already mentioned, there were numerous machine guns, hand grenades and silencers found in the ashes of the Compound; an expert witness clearly identified automatic weapon fire from the video tape admitted in evidence; and the agents on the scene corroborated these facts. Finally, it is clear that the use of fully automatic weapons, and probably grenades and silencers, was foreseeable and foreseen by all of the Defendants, who were taught, who planned, and who practiced for just such an outcome. Accordingly, the Court finds that those Defendants did, for sentencing purposes, use and carry such enhanced weapons. The second question is whether the portion of 924(c)(1) that refers to enhanced weapons is an enhancement provision or a separate offense. The statute is as follows (for a first-time offender of this section): (c)(1) Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug page 8 trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barrelled rifle, short barrelled shotgun to imprisonment for ten years and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years ... The Defendants primarily rely on _United States v. Correa- Ventura, 6 F.3d 1070 (5th Cir. 1993) and in particular footnote 35, which states: We do note (without deciding) that a different situation may be presented when the evidence tends to prove the use of more than one weapon, and the firearms proven fall within different classes of Section 924(c)'s proscribed weapons. For example, if a firearm violation is asserted, and evidence is introduced as to both shotguns and rifles (with a mandatory 5-year imprisonment penalty) and revolvers with silencing equipment (resulting in a 30-year imprisonment), the jury may well be required to agree on which type of weapon was used in order for the court to assess the appropriate penalty. In that instance, a unanimity instruction as to the class of weapon may be necessary, since the legislature, in amending Section 924(c) to provide varying penalties for certain classified firearms, appears to have indicated its intent that a unanimous verdict be reached with respect to the given class of firearms. _United States v. Sims_, 975 F.2d 1225, 1235-36 (6th Cir. 1992), _cert. denied_, ___ U.S. ___, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993). It is argued that it is simply contrary to fair play for there to be no requirement that a jury determine whether a weapon used or carried was an enhanced one, especially when the punishment increases from 5 years to 30 years. Title 21, section 841 however, contains enhancing provisions based on the quantity of controlled substances involved, and the quantity can increase the sentence to a mandatory minimum of 20 years or a mandatory life sentence if a death or serious bodily injury occurs or if the defendant has two previous convictions under that section. These provisions are clearly sentence enhancing provisions, and are as profound in their impact as is 924(c)(1). _United States v. Royal_, 972 F.2d 643 page 9 (5th Cir. 1992). It should be pointed out that {ASCII character 21, paragraph symbol, deleted} 924(c)(1) (then entire statute) does define a separate crime and is not merely an enhancement provision. _United States v. Correa-Ventura_, 6 F.3d 1070, 1083 n.22 (5th Cir. 1993). That premise was the basis of this Court's Order validating Count Three despite the absence of a guilty finding on Count One. Section 924(c)'s dependence upon an underlying crime (in most cases), however, "contributes to the appearance that it is akin to a penalty enhancement provision." _Correa- Ventura_ at 1083. The Supreme Court recently set forth the elements of an offense under 18 U.S.C. 924(c)(1): Section 924(c)(1) requires the imposition of specified penalties if the defendant, `during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm.' By its terms, the statute requires the prosecution to make two showings. First, the prosecution must demonstrate that the defendant `use[d] or carrie[d] a firearm.' Second, it must prove that the use or carrying was `during and in relation to' a `crime of violence of drug trafficking crime.' _Smith v. United States_, 113 S.Ct. 2050, 2053 (1993). Under the plain language of the statute, and the Supreme Court's determination of the elements, the type of weapon is not an element of the offense. 1 Because _Smith_ involved a machinegun, the Supreme Court could have incorporated the type of firearm as an element of the offense, but did not do so. The Supreme Court just stated that the sentence for this offense is five years, "[a]nd where, as here, the firearm is a `machinegun' or is fitted with a silencer, the sentence is 30 years." _Smith_ at 2053. ------------------ 1 It should be noted, however, that because the defendant in _Smith_ was actually indicted for and convicted of using or carrying a machinegun during a drug trafficking crime, the particular issue facing this Court was not presented. The indictment alleged that the defendant "knowingly used the MAC-10 and its silencer during and in relation to a drug trafficking crime." _Smith_ at 2053. page 10 As recently as March 10, 1994, the Fifth Circuit accepted this two part test enunciated by the Supreme Court, and noted that _only_ those two elements are required. _United States v. Singleton_, 16 F.3d 1419, 1423 (5th Cir. 1994) (citing _Smith_). It is axiomatic that a legislature may establish various factors which, should the sentencing court find to exist, subject a defendant convicted under the statute to a minimum mandatory sentence, and there is no constitutional requirement that these sentencing enhancing factors be submitted to a jury. For example, in _United States v. Royal_, 972 F.2d 643 (5th Cir. 1992), the defendant was charged and convicted by a jury in this Court of violating 21 U.S.C. 841(a)(1) & 846. The indictment did not charge a specific drug amount, and the jury was not instructed or questioned as to amount. The proof at sentencing established that the defendant had trafficked more than five kilograms of cocaine, thus implicating a mandatory minimum sentence of ten years. The defendant was sentenced to 30 years incarceration. On appeal, the defendant argued that this Court erred in enhancing his sentence because the government failed to indict him for the quantity of drugs implicating the enhancement (i.e., over five kilograms). The government had filed a Penalty Enhancement Information several days after the jury's verdict and several months before sentencing. The Fifth Circuit affirmed the conviction: This circuit is part of an overwhelming majority of courts which have concluded that quantity is not an element of the offense. [citations omitted] Rather, quantity is relevant only at sentencing under 841(b). Royal does not allege that the indictment did not adequately notify him of the charges against him. Because quantity is not an element of the offense of which he was convicted, he was not entitled to be notified through the indictment that quantity would be relevant to his sentencing. The notice he received [by the government's Penalty Enhancement Information and the Presentence Report] that the court would take quantity into account when sentencing him was page 11 sufficient to allow him to present evidence, if any, disputing the government's evidence concerning quantity. _Royal_ at 650. This Court's holding is further supported by _McMillan v. Pennsylvania_, 477 U.S. 79 (1986). In _McMillan the Supreme Court upheld a Pennsylvania statute which provided that anyone convicted of certain enumerated felonies was subject to a mandatory minimum sentence of five years if the sentencing judge finds, by a preponderance of the evidence, that the person "visibly possessed a firearm" during the commission of the offense. _McMillan_ at 81. The Supreme court rejected the defendant's argument that the state must prove visible possession beyond a reasonable doubt, and held the Pennsylvania scheme to be consistent with due process. The Supreme Court noted, however, that it was unable to lay down a bright line test, and differences of degree might mandate different results in other cases. To determine whether a particular statute (or part of any statute) creates an independent federal offense or is merely a sentencing-enhancement provision is a matter of legislative intent. _United States v. Jackson_, 891 F.2d 1151, 1152 (5th Cir. 1989). The factors deemed helpful, but not controlling, in making such a determination are whether: (1) punishment is predicated upon conviction under another section; (2) the statute multiplies the penalty received under another section; (3) the statute provides guidelines for sentencing hearings; and (4) the statute is titled as a sentencing provision. _United States v. Affleck_, 861 F.2d 97,98 (5th Cir. 1988), _cert. denied_, 109 S.Ct. 1325 (1989). The application of these factors to the sentencing portion of 924(c)(1) clearly demonstrates Congressional intent to make the punishment provisions enhancement factors rather than essential elements. While punishment is not predicated upon a conviction for page 12 another offense, _United States v. Munoz-Fabela_, 896 F.2d 908, 909 (5th Cir.) _cert. denied_, 498 U.S. 824 (1990), it is clear that the statute does require a finding by the jury of the commission of another offense. _United States v. Ruiz_, 986 F.2d 905, 911 (5th Cir.), _cert. denied_, 114 S.Ct. 145 (1993). The very language of the statute makes it clear that it does multiply the punishment and that punishment is mandatory and to be imposed consecutive to any sentence. Last, the unchanged title of 924, "Penalties," is an indication that Congress intended the enhancement factors to be just that, and not essential elements. Finally, in _United States v. Harris_, 1959 F.2d 246 (D.C. Cir. 1992), the District of Columbia Circuit held that the jury need not find that a defendant knew he possessed a machinegun for purposes of a conviction under 924(c). 2 The D.C. Circuit "easily reject[ed]" the defendant's argument that a particularized scienter is required under 924(c) "because there is no requirement that every element of an offense dealing with highly dangerous devices or substances have scienter." _Harris_ at 258. The Court held: [W]e assume that section 924(c) is violated only if the government proves that the defendant . . . intentionally used firearms in the commission of a drug trafficking crime. The defendant's knowledge that the objects used to facilitate the crime are `firearms' must be proven and charged to the jury, as it was in this case. Deliberate culpable conduct is therefore required as to the essential elements of the crime--the commission of the predicate offense and the use of a firearm in its execution--before the sentence enhancement for use of a machinegun arises. Harris and Smith argue, however, that in light of the enhanced penalties involved, if a machinegun was used the government must show that the defendant knew the precise nature of the weapon and not merely that he knowingly used a weapon in relation to a drug distribution offense. The difficulty we see in appellants' position is that, assuming that the essential elements of the crime (drug trafficking and use of a firearm) already require --------------------------- 2 The court did find that scienter was required for a violation of 26 U.S.C. 5485 (a)(6)-- just as the Supreme Court has recently found for
5861. _Staples v. United States_, 1994 U.S. Lexis 3773 (May 24, 1994). page 13 a showing of mens rea, there does not seem to be a significant difference in mens rea between a defendant who commits a drug crime using a pistol and one who commits the same crime using a machinegun; the act is different, but the mental state is equally blameworthy. We are in neither case confronted with an alter boy making an innocent mistake. This case is similar to those involving arguments that criminal penalties cannot be enhanced based on possession of different kinds of illegal substances (drugs) without the government showing that the defendant knew the exact nature of a given illegal substance. That argument, correctly in our view, has been rejected by other circuits. . . . The jury found (pursuant to the district court's instructions) that both Harris and Smith knowingly or intentionally possessed a firearm, and that they did so intentionally to facilitate a drug trafficking crime. . . . We, therefore, conclude that appellants had the requisite mens rea under section 924(c). _Harris_ at 258-259. In an earlier era, before the surge of crime in this country caused Congress to attempt to micro-manage sentences handed down by federal courts, judges could actually weigh relative culpability and exercise discretion in formulating appropriate sentences. Such is not now the case. Based on this Court's review and analysis of all available authorities, it is determined that 30 year sentences as to all Defendants convicted of Count Three is mandatory. _Obstruction of Justice_. U.S.S.G. 3C1.1. Many of the Defendants object to the recommendation that two points be added to the offense level for obstruction of justice. U.S.S.G. 3C1.1, Application Note 3.i. provides that conduct prohibited by 18 U.S.C. 1510-1516 is an example of conduct to which this enhancement applies. Title 18 1509provides: Whoever, by threats of force, willfully prevents, obstructs, impedes, or interferes with or willfully attempts to prevent, obstruct, impede or interfere with, the due exercise of rights or page 14 the performance of duties under any order . . . of a court of the United States shall be fined not more than $1,000.00 or imprisoned not more than one year or both. * * * It is clear that each of the Defendants, for 51 days, conspired to prevent lawful authorities from executing a lawful search warrant and did so by threat of force, specifically keeping lawful authorities at bay by use of firearms. This enhancement does apply, and the objections are overruled. _Official Victim Adjustment_ U.S.S.G. 3A1.2 Several Defendants object to a three level increase in the offense level under the Official Victim provision of U.S.S.G. 3A1.2. That section provides: If --- a) * * * b) during the course of the offense . . . the defendant or a person for whose conduct the defendant is otherwise accountable, knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury, increase by 3 levels. Each Defendant save Fatta was convicted of Court Three, which required a finding of conspiracy to murder federal agents. Such conspiracy and the ambush which resulted certainly constitutes an assault of the type described. There is no question that the Defendants knew the victims were law enforcement officers. Indeed the conspiracy demanded that they be. This objection is overruled. _Count Three Concurrent or Consecutive_ Many Defendants suggest that punishment for Count Three should not be consecutive page 15 because the jury did not convict on the predicate Count One. This suggestion ignores the requirement that the jury find as to Count Three that the predicate offense occurred, even though "through mistake, compromise or lenity" it chose not to do so as to Count One. _United States v. Powell_, 469 U.S. 57 (1984). Additionally, the second sentence of Title 18 U.S.C. 924(c)(1) provides: Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with _any other term of imprisonment_ including that imposed for the crime of violence . . . in which the firearm was used or carried. (emphasis supplied). This objection is likewise overruled. _Acceptance of Responsibility_ U.S.S.G. 3E1.1 All Defendants seek a three point reduction in the offense level for acceptance of responsibility. No defendant now before the Court admitted guilt, expressed remorse or in even any small way attempted to meet the requirements of this section. These objections are ludicrous and are overruled. _Fatta's Objections_ Defendant Fatta suggests that adding 6 points for involvement of fifty or more firearms is inappropriate since there were only 48 illegal machineguns accounted for. Under Application Note 1, however, "firearm" includes any destructive device or silencer. There were several of each, and added to the 48 machineguns, the total exceeds 50. This objection is overruled. Fatta also objects to a 2 point addition for the involvement of a destructive device. Since there were enough silencers to make the total above 50 without counting the live page 16 grenades, then adding this two points does not double-count the grenades, and this objection is also overruled. Fatta's primary objection is the cross-reference to conspiracy to murder. U.S.S.G. 2K2.1(c) provides: Cross-reference 1) If the Defendant used or possessed any firearm or ammunition in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm . . . with knowledge or intent that it would be used or possessed in connection with another offense, apply-- (A) 2X1.1 (Attempt, Solicitation or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above; . . . 2X1.1 provides: (a) Base Offense Level: The base offense level from the guidelines for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable scrutiny. The offense to which cross-reference would be applied is conspiracy to murder federal agents, an offense for which Fatta was acquitted. Fatta's argument is that by allowing cross- reference to that offense, the sentencing guidelines stands the law on its head. The first answer is that the guidelines, and the cross-referencing provision, merely directs the Court to the correct sentence within the statutory range. In this case, that command would direct the Court to the upper limits of the statutory range. The second answer is simply that that is the law. The Second Circuit addressed this exact issue in _United States v. Concepcion_, 983 F.2d 369 (2d Cir. 1992), _cert. denied_ in _Frias v. United States_, ___ U.S. ___, 114 S.Ct. 163 page 17 (1993). In that case, the defendant was acquitted of an underlying narcotics conspiracy, but convicted of possession of a firearm by a felon and possession of an unregistered firearm. The district court cross-referenced to conspiracy, the acquitted offense. In pertinent part, the Second Circuit held: Given the Commission's evident intent that the term `another offense' include uncharged offenses, we are left with the question of whether it also meant that term to include an offense with which the defendant was charged but of which he was acquitted. We conclude that it did. . . . Since an `[a]cquittal d[id] not have the effect of conclusively establishing the untruth of all the evidence introduced against [a] defendant,' [citation omitted], and since disputed facts for purposes of sentencing needed only be established by a preponderance of the evidence, the sentencing court was entitled to consider information that the defendant had engaged in conduct that was the subject of an acquittal. [citations omitted] _Concepcion_ at 387-88. In _United States v. Masters_, 978 F.2d 281 (7th Cir. 1992), _cert. denied_, ___ U.S. ___, ___S.Ct. ___, 124 L.Ed2d 245 (1993), the Seventh Circuit similarly held, noting that judges may take other crimes into account when sentencing even when the defendant has been acquitted of those crimes: "An acquittal means that the charge was not proven beyond a reasonable doubt; it does not mean that the defendant didn't do it." _Masters_ at 286. Therefore, the acquittal of Fatta on Count One does not preclude the cross-reference recommended by the probation office in this case. Moreover, even if the increase in this case could be considered "astronomical," as in the _Concepcion_ case, this Court does not believe a downward departure pursuant to 5K2.0 is appropriate. Fatta was convicted by the jury of Conspiracy to Possess Machineguns (Count 9) in violation of 18 U.S.C. 922(o), and Aiding and Abetting in the Unlawful Possession of Machineguns (Count 10) in violation of 18 U.S.C. 922(o) and 18 U.S.C. 2. Because of the large number of automatic page 18 weapons and destructive devices in this case, the cross-reference is particularly appropriate and a downward departure is not warranted. It is also important that U.S.S.G. 1B1.3, dealing with relevant conduct, provides: (a) Chapters Two (offense conduct) and Three (adjustments). Unless otherwise specified, . . . (iii) cross-reference in Chapter Two . . . shall be determined on the basis of the following: (1) . . . (B) in the case of a jointly undertaken criminal activity . . . all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. . . . Lastly, Fatta was convicted of conspiracy to manufacture illegal firearms, and under the circumstances, it was foreseeable and foreseen by him that those weapons would be used in the manner they were. Therefore, the cross-reference in this case is clearly appropriate, and Fatta's objection is overruled. SIGNED this __17th__ day of June, 1994. [signed] ___________________________ WALTER S. SMITH, JR. UNITED STATES DISTRICT JUDGE page 19 |
