USA v. Graham

Decision Date24 January 2001
Docket NumberNo. 99-1719,99-1719
Parties(6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Randy Graham, Defendant-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 98-00054--Richard A. Enslen, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Joan E. Meyer (argued and briefed), Office of the U.S. Attorney for the Western District of Michigan, Grand Rapids, MI, for Plaintiff-Appellee.

Jeffrey J. O'Hara (argued and briefed), Grand Rapids, MI, for Appellant.

Before: BOGGS and MOORE, Circuit Judges; COHN, Senior District Judge.*

MOORE, J., delivered the opinion of the court, in which BOGGS, J., joined. COHN, D. J. (pp. 524-544), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

This case involves Defendant-Appellant Randy Graham's direct appeal from his criminal conviction for conspiracy to commit offenses against the United States and several weapons possession and drug-related counts by a jury in the Western District of Michigan. Graham was a member of a local militia organization which was planning to attack government targets on an unspecified future date. Graham also grew and sold marijuana, part of the proceeds of which he used to help pay for weapons acquisitions related to his militia activity. Graham was sentenced by the district court to 660 months or 55 years in prison. He challenges on appeal his conviction and his sentence. For the following reasons, we AFFIRM the district court's denial of Graham's two motions to suppress evidence; the district court's denial of his motion to sever counts; the district court's application of 3A1.4 of the United States Sentencing Guidelines Manual ("U.S.S.G.") in determining Graham's sentence; and the district court's consecutive sentencing on two convictions under 18 U.S.C. 924(c)(1); and we VACATE the district court's application of the statutory sentencing range for a quantity of marijuana not found by a jury beyond a reasonable doubt, and REMAND for resentencing.

I. BACKGROUND
A. Graham's Drug Activity

Randy Graham, who is now 45 years old, lived in Battle Creek, Michigan, where he completed high school and thereafter had intermittent employment. In 1977, he joined the United States Army. He was discharged from the Army in 1978 and returned to Michigan where he held various jobs.1 At trial, William Huggett, a close friend of Graham's, testified that Graham was a regular user of marijuana. According to Huggett, he and Graham began to sell marijuana in 1988. At that time, Graham and Huggett would also raid other people's marijuana patches. In 1989, Huggett testified that they began to grow their own marijuana. Working with Huggett, Graham planted marijuana plants indoors in Huggett's home; later, they moved their operation outdoors to nearby swamps. In 1994, their best year, they harvested forty pounds of marijuana, although Huggett stated that many years they harvested much less.

Local police seized Huggett's and Graham's marijuana plants and various weapons, which were stored on Huggett's uncle's property, in February 1995. In early 1996, Huggett and Graham purchased a trailer in which to grow marijuana; it was set up next to the trailer in which Graham lived. Huggett testified that they harvested 23 or 24 pounds of marijuana in 1996. In 1997, Huggett and Graham planted seven plots of marijuana plants in nearby swamps. In the summer or fall of 1997, the Southwest Drug Enforcement Team, a drug interdiction group, seized six of the seven patches of marijuana plants. Huggett testified that, in 1996 and 1997, Graham would sometimes carry with him a firearm while they were tending their marijuana patches. Huggett also testified that Graham used the money from his drug activities to purchase weapons and for living expenses.

B. Graham's Militia Activity

Graham and Huggett were members of a militia group called the Michigan Militia Wolverines in the early years of their marijuana cultivation business. Huggett testified that, at some point after 1995, Graham and others were expelled from the Wolverines because they were advocating violence against the government. In the summer of 1996, those individuals who had left the Wolverines formed a new militia group called the "North American Militia" ("NAM"). The purpose of the militia group was to prepare for a "war" with the government and ultimately to overthrow the government. NAM members advocated an offensive "first strike" against the government, out of fear that the government was planning an attack against them. The war was sometimes referred to as an "Armageddon." J.A. at 1135. The commanding officer of the militia was "Colonel" Ken Carter, who had organized the group. J.A. at 1133. Bradford Metcalf was Carter's second-in-command. Graham was not considered a leader, but was an active member of NAM. From the summer of 1996 through March 1998, NAM members met at least twice a month at Speed's Koffee Shop in Urbandale, Michigan or at a mall in Kalamazoo. There, members would discuss coordination with other militia groups and political events as well as coordinate training exercises and plan their attacks. Various dates for attack were selected, beginning with June 7, 1997, although each date was subsequently postponed by Carter.

Undercover Bureau of Alcohol, Tobacco, and Firearms ("ATF") Agent Robert Stumpenhaus infiltrated NAM sometime in April 1997. Agent Stumpenhaus testified at trial that he participated in over ten meetings at Speed's and at the mall with various members of NAM.2 Stumpenhaus and other witnesses who testified at trial reported that among their activities, NAM collected and stockpiled weapons; held target practice and conducted paramilitary training; selected various federal and state "hard" and "soft" targets; and plotted strategy for their war. Stumpenhaus reported that Carter's strategy was to attack certain targets in Calhoun County, Michigan, and the surrounding area, create chaos, and then attempt to "hold on" for three to five days while militias in other parts of the country would rise up against the government. J.A. at 1063-64. In preparation for their war, NAM members participated in training activities, such as going on "bivouacs;" learning "close quarters battle;" and securing a building with weapons and emptying the building of people and weapons. J.A. at 1166.

Under Carter's direction, each member of the militia was assigned to a three-person "cell" which was responsible for "taking out" various "hard" and "soft" targets in a certain geographical region. Among the "hard" targets selected for attack were: (1) the intersection of Interstate 94 and U.S. Route 131 near Kalamazoo, Michigan; (2) power facilities; (3) fuel depots and gas stations; and (4) communication facilities such as a TV station in Kalamazoo, Michigan. Also mentioned as a site for attack was the nearby Fort Custer Army National Guard Post. NAM's goal was to cut off transportation, electricity, gas, and communication to the area. Among the "soft" targets identified were federal prosecutors, judges, and other federal officials as well as Senator Carl Levin of Michigan and other members of Congress. Carter also established a method of communication among NAM members that involved beeper messages and a telephone tree; certain beeper codes were to alert members to be ready to start battle.

According to one witness, NAM members' preferred weapon was a semi-automatic rifle, but members also discussed their possession of machineguns and homemade bombs. Testimony also established that NAM members discussed using a variety of attack methods and devices, including chemical warfare, bombs, grenades, and land mines.

Graham's involvement in these activities included attending meetings, participating in training exercises, recruiting members, and purchasing weapons with money derived from his marijuana sales. Notably, Graham was the leader of one of the three-person cells and he "reconned" his assigned region, meaning he visited his assigned attack area and surveyed his targets. J.A. at 1082. At one meeting, on June 17, 1997, he drew a map of Stumpenhaus's assigned region, marked targets for him to attack including four electrical targets, a V.A. hospital, a gas station, Fort Custer, and a television station, and told him he would help him to "reconn" the area. J.A. at 1086. He also made numerous statements indicating that he was ready to attack his assigned targets; that he possessed a wide variety of weaponry; and that he was prepared to kill federal agents and police officers.

C. Government Investigation

From July 3, 1997 to August 30, 1997, government agents conducted a wiretap on Carter's telephone. The government recorded numerous statements by Graham which indicated his possession of significant weaponry and firepower and his willingness to use it on federal agents and police officers. On August 13, 1997, federal agents executed a search warrant at Metcalf's property, which was NAM's training site. One witness described Metcalf's home as "a miniature military compound." J.A. at 1150. There, agents discovered that Metcalf's property, approximately 40 acres, had been fortified with bunkers and foxholes and that he had set up a firing range. From his home they seized machineguns; loaded semi-automatic assault rifles and thousands of rounds of ammunition; assault rifles; thirty pounds of smokeless gun powder; silencers; several feet of time fuse; four grenade hulls and a live grenade fuse; flare and tear gas launchers; and military combat equipment including flak vests, helmets, and gas masks. They also seized books and manuals on how to make automatic weapons, construct bombs, and make...

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