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
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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
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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
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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
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(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
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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
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