U.S. v. McKinley, 91-5514

• Decision Date: 16 July 1993
• Docket Number: No. 91-5514,91-5514
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin McKINLEY, Seamus Moley, Joseph McColgan, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1020

995 F.2d 1020

UNITED STATES of America, Plaintiff-Appellee, v. Kevin McKINLEY, Seamus Moley, Joseph McColgan, Defendants-Appellants.

No. 91-5514.

United States Court of Appeals,

Eleventh Circuit.

July 16, 1993.

Fred Haddad, Fort Lauderdale, FL, for McKinley.

Stephen J. Bronis, Miami, FL, for McColgan.

Bruce A. Zimet, P.A., Ft. Lauderdale, FL, for Moley.

Dexter Lehtinen, U.S. Atty., Frank H. Tamen, U.S. Attorney's Office, Linda Collins Hertz, Dawn Bowen, Miami, FL, for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, JOHNSON, Senior Circuit Judge, and KING ^*, Senior District Judge.

COX, Circuit Judge:

Defendants Kevin McKinley, Seamus Moley and Joseph McColgan were convicted of conspiring to export unlawfully a Stinger missile and other weapons to Northern Ireland. We affirm their convictions.

Count I of the indictment charged the defendants with conspiring to commit more than one offense. It alleged that the defendants conspired to transport and receive a Stinger missile with the intent that it be used to injure persons and property (in violation of 18 U.S.C. § 844(d)) and to export the missile and other weapons without the required licenses (in violation of 22 U.S.C. § 2778). The jury's general verdict finding the defendants guilty on Count I did not specify which of these offenses were objects of the conspiracy. The court sentenced the defendants according to the offense guideline for violations of 22 U.S.C. § 2778, the Arms Export Control Act. The defendants, however, objected at sentencing and maintain on appeal that the Government did not prove at trial that the defendants had the requisite intent to violate the licensing provisions of the Arms Export Control Act and that the jury, therefore, could not have determined that the defendants conspired to violate the Arms Export Control Act. They argue that the sentencing court should not have used the offense guideline for violations of 22 U.S.C. § 2778. Instead, the court should have sentenced the defendants according to the offense guideline for violations of 18 U.S.C. § 844(d), the other object offense charged in the indictment.

We address this question: When defendants are convicted on a count charging a conspiracy to commit more than one offense, but the jury's verdict does not specify which of those offenses the defendants conspired to commit, which offense guideline applies at sentencing? The Sentencing Guidelines answer this question in § 1B1.2(d), its accompanying commentary and the grouping rules of Chapter 3, Part D. See United States Sentencing Commission, Guidelines Manual, § 1B1.2(d) & comment. (n.5) (Nov. 1990). ¹ Because there is nothing in the record to indicate that the district court made findings in accordance with these provisions, we vacate the sentences and remand for resentencing.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

We summarize here only those facts relevant to the issues we address in this opinion.

In January 1990, a federal grand jury in the Southern District of Florida indicted Kevin McKinley, Seamus Moley and Joseph McColgan. Count I of the indictment charged a multiple-object conspiracy, listing as the conspiracy's objects two violations of 18 U.S.C. § 844(d) (the transporting and receiving statute) and two violations of 22 U.S.C. § 2778 (the Arms Export Control Act). It charged the defendants with conspiring (1) to attempt to receive in interstate commerce a Stinger missile with the knowledge and intent that the missile would be used to kill or injure individuals and unlawfully damage and destroy vehicles and personal property in violation of 18 U.S.C. § 844(d); (2) to attempt to transport in foreign commerce a Stinger missile in violation of 18 U.S.C. § 844(d); (3) to knowingly and willfully export a Stinger missile without applying for and obtaining the required license from the State Department in violation of 22 U.S.C. § 2778; and (4) to knowingly and willfully export other listed defense articles without applying for and obtaining the required licenses from the State Department in violation of 22 U.S.C. § 2778. Counts II, III and IV charged substantive violations of 18 U.S.C. § 844(d) and 22 U.S.C. § 2778. Count V charged a conspiracy to destroy aircraft belonging to the United Kingdom, a country with which the United States is at peace, in violation of 18 U.S.C. § 956.

Judge Jose A. Gonzalez presided at trial. The Government's first witness chronicled the history of the political and religious struggle in Northern Ireland. Then, two federal agents testified that they had negotiated with the defendants for the sale of a Stinger missile and other munitions for export to Northern Ireland. The agents testified that during meetings with the defendants, the defendants had indicated that they were associated with the Irish Republican Army and that they sought a Stinger missile for use against British helicopters in Northern Ireland. The Government introduced numerous audio and video tapes of these meetings and introduced evidence showing that the defendants had neither applied for nor obtained a State Department license for the export of these weapons.

At the close of the Government's evidence, the defendants made Rule 29 motions for a judgment of acquittal on all counts. As to Count I (the multiple-object conspiracy) and Count III (attempt to violate the licensing requirements of 22 U.S.C. § 2778), the defendants argued that the evidence was not sufficient to support a conviction for willfully violating or for conspiring to willfully violate the licensing requirements of the Arms Export Control Act. In particular, they argued that the Government had not proven that the defendants knew of the licensing requirements and that they then conspired to export the weapons without the appropriate licenses. Quoting United States v. Adames, 878 F.2d 1374, 1377 n. 1 (11th Cir.1989), defendant McColgan's attorney insisted that the Government must produce evidence sufficient to establish that the defendants " 'agreed to export the firearms without the requisite licensing despite knowledge that such exportation was unlawful.' " (R.22 at 36). The court denied the motions for judgment of acquittal.

At the close of all the evidence, the defendants again made Rule 29 motions for a judgment of acquittal, adopting the arguments they had made in support of their motions at the close of the Government's case. Again, the court denied the motions.

The defendants then requested a special verdict form. They asked the court to require the jury to specify which of the four object offenses the defendants had conspired to commit. The court denied the motion and submitted the case to the jury with a general verdict form.

After deliberating for several days, the jury found the defendants guilty of the multiple-object conspiracy charged in Count I and guilty of the attempt to violate 18 U.S.C. § 844(d) charged in Count II. The jury returned a verdict of not guilty as to all other counts. The defendants filed motions for a new trial, reiterating the arguments they had made in support of their motions for judgment of acquittal.

The probation officer prepared and filed a presentence investigation report (PSI) for each defendant. The offense level computation was the same for all defendants. ² In the PSIs, the probation officer noted that Count I charged a conspiracy with four objects. Citing Application Note 9 to § 3D1.2 of the Sentencing Guidelines, the probation officer treated Count I "as if it were four counts, each charging conspiracy to commit one of the substantive offenses." (PSI at p 56). Two of the objects involved violations of the transporting and receiving statute and two involved violations of the Arms Export Control Act. Section 2K1.6 of the Guidelines provides a base level of 18 for transporting or receiving explosives with felonious intent. Section 2M5.2 provides a base level of 22 for the exportation of arms without the required export licenses. The probation officer grouped these offenses together pursuant to § 3D1.2(b) and assigned a base offense level of 22, concluding that 22 U.S.C. § 2778 was the most serious of the offenses in the group. See U.S.S.G. § 3D1.2(a).

The defendants objected to the probation officer's use of a base offense level of 22. They argued that the evidence was insufficient to support a conviction for conspiracy to violate the Arms Export Control Act and that the offense level for violations of 22 U.S.C. § 2778 was therefore inappropriate to determine their sentences. They insisted that the base offense level of 18 for violations of the transporting and receiving statute was appropriate.

The defendants' sentencing hearing was conducted in two parts and before two judges. The first portion of the defendants' sentencing hearing was held on February 22 1991, before Judge Jose A. Gonzalez, who had presided over the defendants' trial. Judge Gonzalez found that the offense level for each defendant was 22, and that the guideline range was 41 to 51 months. He then overruled defense objections to the PSIs. Because the defendants complained that they had not had an opportunity to review and respond to the probation officer's second addendum to the PSIs, Judge Gonzalez agreed to proceed with their sentencing hearing at a later date.

The defendants had also moved to disqualify Judge Gonzalez as sentencing judge, because he had reviewed, in camera, information contained in a Foreign Intelligence Surveillance Act (FISA) intercept. They argued that Judge Gonzalez could not, without an appearance of bias, rule on the Government's request for an upward departure for national security reasons, because he had reviewed the FISA information and denied access to the defendants for national security reasons. Judge Gonzalez initially denied this motion at the defendants' sentencing hearing, but later reconsidered. In his order of ...