From: [c h risw] at [bga.com] (chris walker)
Newsgroups: talk.politics.guns
Subject: Waco:  Branch Davidian sentencing findings
Date: 28 Jul 1994 17:51:58 -0500


Branch Davidian Sentencing Findings from the Probation Officer
Produced just prior to sentencing in June 1994.	

>            IN THE UNITED STATES DISTRICT COURT
>             FOR THE WESTERN DISTRICT OF TEXAS
>                     WACO DIVISION
>
> {doesn't appear to have been filed}
> 
>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

page 4


> (1989).
>
> 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 {ASCII character 21, paragraph symbol, deleted} 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 {ASCII character
>21, paragraph symbol, deleted} 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. {ASCII character 21, paragraph symbol, deleted}
>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. {2 ASCII character 21's, paragraph
>symbol, deleted} 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 {ASCII character 21, paragraph
>     symbol, deleted} 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
>{ASCII character 21, paragraph symbol, deleted} 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 [ASCII
>character 21, paragraph symbol, deleted] 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 {ASCII character 21, paragraph
>symbol, deleted} 924(c). 2  The D.C. Circuit "easily reject[ed]"
>the defendant's argument that a particularized scienter is
>required under {ASCII character 21, paragraph symbol, deleted}
>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. {ASCII character 21, paragraph symbol, deleted} 5485
>(a)(6)-- just as the Supreme Court has recently found for {ASCII
>character 21, paragraph symbol, deleted} 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. {ASCII character 21, paragraph
>symbol, deleted} 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. {ASCII character 21, paragraph symbol, deleted} 3C1.1,
>Application Note 3.i. provides that conduct prohibited by 18
>U.S.C. {2 ASCII character 21's, paragraph symbol, deleted} 1510-
>1516 is an example of conduct to which this enhancement applies.
>
>Title 18 {ASCII character 21, paragraph symbol, deleted} 1509
>provides:
>
>     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
      
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>     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

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>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. {ASCII 
>character 21, paragraph symbol, deleted} 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. {ASCII character 21, paragraph symbol, deleted} 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) {ASCII character 21, paragraph symbol, deleted} 2X1.1
>     (Attempt, Solicitation or Conspiracy) in respect to
>     that other offense, if the resulting offense level is
>     greater than that determined above;  . . .
>   
>{ASCII character 21, paragraph symbol, deleted} 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 {ASCII
>character 21, paragraph symbol, deleted} 5K2.0 is appropriate.
>Fatta was convicted by the jury of Conspiracy to Possess
>Machineguns (Count 9) in violation of 18 U.S.C. {ASCII character
>21, paragraph symbol, deleted} 922(o), and Aiding and Abetting in
>the Unlawful Possession of Machineguns (Count 10) in violation of
>18 U.S.C. {ASCII character 21, paragraph symbol, deleted} 922(o)
>and 18 U.S.C. {ASCII character 21, paragraph symbol, deleted} 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

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