180 F.3d 1217 (10th Cir. 1999), 98-6249, United States v. Fortier

Docket Nº:98-6249.
Citation:180 F.3d 1217
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael J. FORTIER, Defendant-Appellant.
Case Date:June 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1217

180 F.3d 1217 (10th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael J. FORTIER, Defendant-Appellant.

No. 98-6249.

United States Court of Appeals, Tenth Circuit

June 30, 1999

Appeal from the United States District Court for the Western District Of Oklahoma (D.C. No. CR-95-111-VB).

Michael G. McGuire, Tulsa, Oklahoma, for Defendant-Appellant.

Sean Connelly (Patrick M. Ryan, United States Attorney, Western District of Oklahoma, with him on the brief), Special Attorney to the U.S. Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Before PORFILIO, McWILLIAMS, and BALDOCK, Circuit Judges.

PORFILIO, Circuit Judge.

Michael Joseph Fortier appeals from his sentence after pleading guilty to conspiring to transport stolen firearms, 18 U.S.C. § 371, transporting stolen firearms, §§ 922(i), 924(a)(2), making a materially false statement to the FBI, § 1001, and misprision of a felony, § 4. The trial court sentenced the defendant to 144 months of imprisonment, three years of supervised release, $200,000 in fines, and $4,100 in restitution. Mr. Fortier has admitted to receiving stolen firearms from Timothy James McVeigh, selling those arms, and then returning some of the proceeds to McVeigh and Terry Lynn Nichols. McVeigh and Nichols allegedly used the proceeds to help fund the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma.

Mr. Fortier submits six grounds for vacating his sentence. He argues the district court erred when it (1) declined to change the venue for sentencing; (2) used statements made pursuant to a plea agreement to determine the applicable guideline range; (3) sentenced him based on the guideline for first-degree murder; (4) departed downward only two levels for substantial assistance; (5) refused to depart downward based on extraordinary acceptance of responsibility; and (6) ordered $200,000 in fines. We agree with Mr. Fortier on his third and sixth points and therefore vacate his sentence and remand for resentencing.

I. Factual and Procedural Background

A.

The circumstances leading to this appeal stem from Michael Fortier's association with Timothy McVeigh and Terry Nichols, the masterminds behind the bombing of the Murrah Federal Building in Oklahoma City. The specifics of the bombing are fully set forth in our decision of McVeigh's appeal. See United States v. McVeigh, 153 F.3d 1166, 1176-79 (10th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999). Mr. Fortier was not charged as a conspirator in the bombing and thus the various details pertinent to his co-defendants' participation in that offense need not be recounted here. Instead, we focus on the facts surrounding Mr. Fortier's receipt and sale of the stolen firearms, his awareness of the larger conspiracy to destroy the Murrah Federal Building, and the connection, if any, between the offenses.

Mr. Fortier first learned of the bombing conspiracy in September 1994, when McVeigh, the primary agent provocateur, tried to recruit him by letter. The letter told the defendant that McVeigh and Nichols, both of whom Mr. Fortier knew from their service together in the United States Army, had decided to take some type of positive offensive action against the federal government. Mr. Fortier did not reject the solicitation but instead wrote back asking what McVeigh had meant by taking action. At a subsequent meeting in Mr. Fortier's home in Arizona, McVeigh explained that he and Nichols planned to blow up a federal building. With these details on the table, McVeigh renewed the invitation to join the conspiracy, but Mr. Fortier declined.

McVeigh later informed Mr. Fortier that he and Nichols had stolen some explosives and intended to use them to bomb the federal building in Oklahoma City on the two-year anniversary of the destruction of the Branch Davidian compound in Waco, Texas. See United States v. Branch, 91 F.3d 699, 709-10 (5th Cir.1996) (describing the federal government's ill-fated raid at Waco that resulted in eighty-two deaths), cert. denied, 520 U.S. 1185, 117 S.Ct. 1466 (1997). McVeigh chose the federal building in Oklahoma City, the defendant learned, because the orders for the attack at Waco originated in the building, the building housed people involved in the Waco raid, and the building's U-shape and glass front made it an easy target. Mr. Fortier expressed concern about the innocent people who would be killed by the bomb, but McVeigh dismissed them as persons who had to die because they served an evil system.

In late October 1994, McVeigh then told Mr. Fortier about a plan to rob an Arkansas gun collector as a means of funding the conspiracy. Nichols had grown tired of paying his and McVeigh's expenses. The robbery, which McVeigh characterized as a "fund-raiser," was designed to solve the problem. Soon thereafter, Nichols executed the plan and robbed Roger Moore of 78 firearms, cash, precious metals, and other valuables.

One month later, in mid-December, McVeigh asked Mr. Fortier to accompany him to Kansas; in exchange, McVeigh promised to give Mr. Fortier some of the stolen firearms. The defendant agreed and took some time off from work for what he understood was probably a "shady deal" involving the stolen guns. On the way to Kansas, McVeigh drove by the Murrah Federal Building in Oklahoma City, gesturing that the edifice was the intended target. McVeigh further explained the details of the bombing to include placing the bomb in a Ryder truck to be parked in front of the building. He asked Mr. Fortier if such a large truck would fit in the driveway in front of the building; Mr. Fortier opined that it would. McVeigh then drove into an alley to point out a parking spot where Nichols would either drop off a getaway car ahead of time or else wait for McVeigh on the day of the bombing. Mr. Fortier and McVeigh then left Oklahoma City for Kansas.

Soon after, the men arrived in Council Grove, Kansas. The two stopped at a storage unit where McVeigh had stored the firearms stolen from Roger Moore. McVeigh removed several of the guns, and the two then spent the night at a hotel. The following day, Mr. Fortier rented a car and he and McVeigh returned to the storage locker. McVeigh selected 20 to 25 guns from the locker and loaded them into the defendant's rental car. Mr. Fortier then drove back alone to Arizona. Once home, he moved the weapons into his house.

Mr. Fortier next saw McVeigh in January 1995 at a hotel in Kingman, Arizona. McVeigh asked the defendant if he had sold any of the stolen weapons. Mr. Fortier responded that he had not, and McVeigh became upset. McVeigh then arranged for the defendant to sell the firearms at various gun exhibitions. The first of these, which both Mr. Fortier and McVeigh attended, was in Reno, Nevada, in early February 1995.

Mr. Fortier made approximately $2,100 from sales of firearms at that show. After the exhibition, McVeigh informed Mr. Fortier that Nichols was angry because McVeigh had given the defendant some of the stolen weapons; Nichols wanted $2,000 in return. Mr. Fortier immediately gave McVeigh $1,000 with the understanding it would then be sent to Nichols. After attending two more gun shows in February and March 1995--during one of which he was again accompanied by McVeigh--Mr. Fortier gave McVeigh an additional $1,000.

During the months of February and March 1995, McVeigh again sought to recruit Mr. Fortier's participation in the larger conspiracy to destroy the Murrah Federal Building. Specifically, he wanted the defendant to mix the bomb components and assist in the post-bombing escape plan. Mr. Fortier declined both requests.

The defendant saw McVeigh for the last time on April 12, 1995, when Mr. Fortier and his wife Lori went to McVeigh's hotel room to return some books McVeigh had loaned them several days earlier. The meeting was tense, and McVeigh told the defendant that they were on very different paths in life and could no longer be friends. The Fortiers left and did not see McVeigh again until the trial. One week later, at 9:02 in the morning, a massive explosion tore apart the Murrah Federal Building killing 168 people and injuring hundreds more.

B.

Less than a month after the bombing, Michael and Lori Fortier were summoned to testify before the federal grand jury investigating the bombing. Upon arriving in Oklahoma City, the Fortiers met with members of the FBI and ultimately agreed to cooperate truthfully in the investigation and prosecution of the bombing. As part of his deal with the government, Mr. Fortier pleaded guilty to conspiring to transport stolen firearms, 18 U.S.C. § 371, transporting stolen firearms, §§ 922(i), 924(a)(2), making a materially false statement to the FBI, § 1001, and misprision of a felony, § 4. He also testified as the prosecution's principal witness against McVeigh and Nichols in their respective trials. In exchange, the government agreed to inform the sentencing court of the extent and value of Mr. Fortier's cooperation and to bring no additional, related charges against him.

Chief Judge Seymour of our court specially appointed Chief Judge Van Bebber of the District of Kansas to sit by designation in the Western District of Oklahoma to handle Mr. Fortier's sentencing. Soon after that appointment, the court held a hearing to resolve disputed sentencing issues. The court considered information obtained from the Presentence Report, statements Mr. Fortier made in the course of cooperating with the government, and the record and transcripts of the McVeigh and Nichols trials. The court also admitted, as part of the record, a stipulation of facts submitted by the parties. The stipulation provides in pertinent part:

The United States has no evidence that when Fortier received...

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