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United States v. Altier

July 31, 1996

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

GERALD ALTIER,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:93-CR-103 James T. Moody, Judge.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

FLAUM, Circuit Judge.

ARGUED JUNE 12, 1996

DECIDED JULY 31, 1996

Gerald Altier participated in a scheme to collect insurance proceeds by attempting to burn down a failing automobile dealership that he owned in part. The day before his trial was scheduled to begin, Altier pled guilty to Count One of the indictment, which charged him with racketeering, in violation of 18 U.S.C. sec. 1962(c). At Altier's sentencing hearing, the district court found that Altier "knowingly" created a substantial risk of death or serious bodily injury, thereby justifying a base offense level of 24 under U.S.S.G. sec. 2K1.4(a)(1). The court also found that, by pleading guilty the day before trial, Altier had not "timely" accepted responsibility. The court thus refused to reduce his offense level by one under U.S.S.G. sec. 3E1.1(b). Altier challenges both of these findings in this appeal. We affirm.

I.

In 1989, Altier invested in the Zaragoza Oldsmobile dealership with John Zaragoza. *fn1 From its inception, Zaragoza Oldsmobile was seriously undercapitalized. In order to keep the dealership afloat, Altier and Zaragoza engaged in a series of frauds that formed the pattern of racketeering activity set out in Count One of the indictment.

By the end of 1990, Zaragoza Oldsmobile had accumulated over $1 million in debt. Zaragoza Oldsmobile had insurance covering fire damage up to $510,000 on the building and $250,000 on the contents of the building. In November 1990, $400,000 in business interruption insurance was added.

On December 28, 1990, Altier and others attempted to destroy by fire the Zaragoza Oldsmobile building. During that month, cars that codefendant Jackie Steele *fn2 kept at Zaragoza Oldsmobile were invoiced or co-signed to Zaragoza Oldsmobile to bring them under Zaragoza Oldsmobile's insurance. On December 26, 1990, Altier and others moved nearly every car on the lot at Zaragoza Oldsmobile inside the dealership's service area, including all the cars belonging to Steele. In the early morning hours of December 28, 1990, approximately 35 gallons of gasoline were poured throughout Zaragoza Oldsmobile including in and around the vehicles and office area. Two road flares were then thrown into the dealership's building. The gasoline did not ignite because there was actually too much gasoline for combustion. If the building had ignited, a tremendous explosion would have been produced.

On September 17, 1993, a federal grand jury indicted Altier, Zaragoza, and Steele. Count One of the indictment charged that Altier, Zaragoza, and Steele conducted the affairs of Zaragoza Oldsmobile through a pattern of racketeering activity including mail, wire, and bank fraud; arson; and interstate travel in aid of racketeering, in violation of 18 U.S.C. sec. 1962(c). The other counts in the 22-count indictment charged one or more of the three with numerous other violations.

The district court scheduled the trial for February 14, 1994. The court held a final pretrial conference on February 3, 1994. The parties filed proposed jury instructions and voir dire questions. Codefendant Zaragoza pled guilty to Count One pursuant to a plea agreement on February 9, 1994. The trial was reset to February 16, 1994. On February 15, 1994, the day before his trial was scheduled to begin, Altier pled guilty to Count One pursuant to a plea agreement. In his change of plea petition, Altier admitted that he had tried to burn down the Zaragoza Oldsmobile dealership. The government agreed to dismiss the remaining counts against Altier. Altier's sentencing hearing was set for May 5, 1994. *fn3

At Altier's sentencing hearing, Altier's attorney argued that refusing to grant Altier a one-level reduction for timely acceptance of responsibility under sec. 3E1.1(b) would infringe upon Altier's Sixth Amendment right to counsel. In support of this claim, Altier testified that he and his attorney received a significant amount of discovery materials from the government about three to five days prior to when his trial was to begin. He further testified that this was the first opportunity that he had to review these materials along with his attorney.

In addition, Altier's attorney argued at the hearing that Altier was entitled to a base offense level of 20 rather than 24. Altier's attorney admitted that, by attempting to burn down the Zaragoza Oldsmobile dealership, Altier created a substantial risk of death or serious bodily injury, thus justifying a base offense level of 20 under sec. 2K1.4(a)(2). However, he maintained that Altier did not "knowingly" create such a risk and thus earn a base offense level of 24 under sec. 2K1.4(a)(1).

The district court found that Altier "knowingly" created a substantial risk of death or serious bodily injury based on the fact that he used 35 gallons of gasoline in an attempt to set fire to a large commercial building in an urban area. The court concluded that the appropriate base offense level was 24 under sec. 2K1.4(a)(1). Noting that the government had to prepare for trial, the court also found that Altier did not "timely" notify authorities of his intention to plead guilty. Although the court granted Altier a two-level reduction for acceptance of responsibility under sec. 3E1.1(a), it concluded that Altier was not entitled to an additional one-level reduction under sec. 3E1.1(b). The court sentenced Altier to 41 months' imprisonment. Altier now appeals his sentence.

II.

Altier raises two issues in this appeal: (1) whether the district court erred in finding that Altier "knowingly" created a substantial risk of death or serious bodily injury when he attempted to set fire to the Zaragoza Oldsmobile dealership, and (2) whether the district court erred in finding that Altier did not accept responsibility in a "timely" fashion in ...


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