US v. McGiffen, PLAINTIFF-APPELLEE

• Decision Date: 12 October 2001
• Docket Number: PLAINTIFF-APPELLEE,98-4218 and 99-3797,DEFENDANTS-APPELLANTS,Nos. 98-3400,s. 98-3400
• Citation: 267 F.3d 581
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. DENNIS M. MCGIFFEN <A HREF="#fr1-*" name="fn1-*">* AND WALLACE S. WEICHERDING,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 581

267 F.3d 581 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. DENNIS M. MCGIFFEN^* AND WALLACE S. WEICHERDING, DEFENDANTS-APPELLANTS.

Nos. 98-3400, 98-4218 and 99-3797

U.S. Court of Appeals, Seventh Circuit

Argued October 30, 2000

September 21, 2001

Corrected October 12, 2001

Appeals from the United States District Court for the Southern District of Illinois. Nos. 98 CR 30035 & 98 CR 30053--Paul E. Riley, Judge. [Copyrighted Material Omitted] Before Ripple, Diane P. Wood, and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

Dennis McGiffen and Wallace Weicherding were members of a group of white supremacists in southern Illinois. After a lengthy undercover investigation by the FBI into the group's activities, McGiffen, Weicherding, and two co-conspirators, Ralph Bock and Glenn Lowtharp, were charged in a one-count indictment with conspiracy to receive and possess unregistered firearms and destructive devices in violation of 18 U.S.C. sec. 371. McGiffen was also charged in a separate one-count information with possession of a machine gun in violation of 18 U.S.C. sec. 922(o). He pleaded guilty to both charges and received concurrent sentences of 60 and 87 months; his appeal is limited to sentencing issues. Weicherding ultimately faced both the conspiracy charge and the machine gun charge under a two-count superseding indictment. He went to trial, where the jury convicted him on both counts; the court sentenced him to concurrent 60- and 70-month sentences. Weicherding's appeal attacks both his conviction and his sentence. We affirm in McGiffen's case, and we affirm Weicherding's conviction but we remand for further proceedings directed to Weicherding's sentence.

I.

The following account is drawn from the record in both cases, including Weicherding's jury trial; we view the facts in the light most favorable to the government. United States v. Wingate, 128 F.3d 1157, 1158 (7th Cir. 1997). In May of 1997, Vincent Reed contacted the FBI to report that some of his acquaintances, including McGiffen and Weicherding, were forming a new, potentially dangerous, white supremacist group in southern Illinois. According to Reed, the group hoped to pick up where "The Order" (a notoriously violent white supremacist organization active in the early 1980s) had left off, uniting white supremacist groups in a violent struggle against those who would resist the creation of a "pure white Christian country." This new group called itself, appropriately enough, the "New Order."

The FBI enlisted Reed as a paid informant charged with infiltrating the emerging New Order. Through Reed's surveillance, the FBI learned that McGiffen, already a Grand Dragon in the Illinois Ku Klux Klan (KKK), was the group's leader. McGiffen worked hard to build the new organization. He recruited and "naturalized" new members (a ritual that included swearing an oath and acquiring a distinctive tattoo) and regularly used both persuasion and force to maintain members' allegiance to the group. He organized and ran the meetings at which members made plans to acquire the money and weaponry they would need to pursue the New Order's militant racist agenda. Last, McGiffen parceled out tasks to the group's various members.

The New Order intended to raise money by robbing banks and armored cars. With those funds, it would then acquire a stockpile of firearms and explosives. The group was particularly interested in building a supply of fully-automatic weapons, which were valuable both for their destructive capabilities and as a source of revenue. McGiffen instructed Weicherding, a member of both the Aryan Nations and the KKK, to conduct surveillance on armored trucks and banks. Reed was assigned to get false identification for New Order members, and McGiffen gave himself and Bock the task of coordinating the acquisition of weapons and explosives.

Weicherding did as he was told. He cased banks and discussed with Reed the specifics of carrying out the first robbery. He also joined McGiffen in the weapons acquisition effort. By June 20, 1997, they had purchased a TEC-9 pistol and gunpowder for use in homemade grenades. On August 28, 1997, Weicherding, Reed, and McGiffen drove together to the home of Ralph Bock to acquire additional firearms. While in the car, they discussed the fact that they were now in possession of a LAWS Rocket (supplied by Reed after it was disabled by the FBI) and dynamite. During thatconversation they also discussed their plans to convert semi-automatic weapons into fully-automatic weapons with the help of Glen Lowtharp, a white supremacist ally with expertise in such things.

On November 8, 1997, Weicherding and McGiffen went to visit Lowtharp, bringing with them two weapons they wanted to convert from semi- to fully-automatic. The three men then proceeded to Lowtharp's sister's house to pick up the parts they needed to complete the conversions and then to his nephew's place to get an AR-15 assault rifle. The next morning, McGiffen and Lowtharp converted the AR-15 rifle to a fully-automatic weapon, using a machine gun hammer, a machine gun trigger, a machine gun disconnector, and a machine gun selector. Weicherding, who had received weapons training during a stint as a prison guard for the Illinois Department of Corrections, watched as the others worked. In tests later conducted by a government expert, the AR-15 fired multiple rounds from its clip with a single pull of the trigger.

With the converted AR-15 in hand, McGiffen and Weicherding left Lowtharp's house with the other two guns they had brought along; they told Lowtharp they planned to use the AR-15 as a model for converting other firearms to "full auto." They also left with "how to" literature about weapons conversion, which specifically warned that "the mere possession of a part or parts which convert a weapon to full auto is illegal without prior [Federal Bureau of Alcohol, Tobacco, and Firearms, or BATF] approval." Later, Weicherding again approached Lowtharp to see if he had acquired any additional machine gun parts the group could use for further conversions.

As the New Order's weapons acquisition activities progressed, its ambitions grew. Members discussed possible assaults on Morris Dees and the Southern Poverty Law Center, Federal Reserve Chairman Alan Greenspan, and a host of other targets. They discussed expanding their organization nationwide and disabling the country's communications infrastructure. At the same time, the growing stockpile of weapons increased McGiffen's concern that law enforcement authorities might get wind of the group's activities. At a meeting at his house, group members, including Weicherding and Reed, were strip-searched for wires, and McGiffen proposed that future telephone conversations be conducted in code--the word "bibles," for example, became code for automatic weapons. Anxiety grew to the point that when McGiffen learned that New Order member Jeff Schmitz told his mother about the group's plans, he stuck a gun to Schmitz's stomach and threatened to kill him and his children if he opened his mouth again.

During January and February of 1998, McGiffen, Weicherding, and other members of the New Order began in earnest to plan their first violent act: the destruction of Morris Dees and the Southern Poverty Law Center. Weicherding took a trip to Atlanta to assess the vulnerability of the center itself and, more ominously, five days after discussing the possibility of assassinating Dees, he took a revolver and drove an hour to attend a speech by Dees at Southern Illinois University in Edwardsville. According to government agents on the scene, Weicherding entered the hall, got in line, but then left after noticing that all guests were required to pass through a metal detector. Weicherding claimed at trial that he left the weapon in his car.

On February 23, 1998, the FBI obtained search warrants for five sites, including Weicherding's residence. That search produced substantial evidence of Weicherding's association with both the Aryan Nations and the KKK, as well as a TEC-9 and a MAC-11 semi-automatic revolver. The FBI also found and seized $12,238 in cash.

A search of Bock's house yielded a gas grenade launcher, a semi-automatic rifle, literature on converting the rifle to fully-automatic, and all the necessary components for a pipe bomb. The search of McGiffen's house yielded similar evidence. He had literature illustrating the weapons conversion process and a brochure advertising various parts needed to convert AR-15s to fully-automatic rifles. That brochure specifically warned "to get the ATF's approval before concluding your conversion." The agents also caught McGiffen himself with the gun that Weicherding took to the Dees lecture and an illegal Street Sweeper 12-gauge shotgun. The FBI's search of McGiffen's mother's home turned up another TEC-9, a pipe bomb, five steel hand grenade hulls, a tear gas grenade, the original converted AR-15 rifle, the LAWS Rocket, and a sawed-off bolt action shotgun. After the searches, both Weicherding and McGiffen were arrested, along with Bock and Lowtharp.

After initially pleading not guilty, McGiffen entered into a written plea agreement with the government and changed his plea to guilty. The court concluded that his offense level was a 26, which included a four-level enhancement for use or possession of a weapon in connection with another felony, U.S.S.G. sec. 2K2.1(b)(5), and another four-level enhancement under sec. 3B1.1(a) for being a leader or organizer of the weapons conspiracy. McGiffen appeals these two enhancements.

Weicherding chose to go to trial. Before trial, the government persuaded the district court to require that the $12,238 seized from Weicherding's home be put toward his defense. Once at trial, Weicherding sought to paint the government's evidence as proving only that a small group of white supremacists spent the better part of 1997 and early 1998...