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UNITED STATES v. DURAN

June 29, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 On June 29, 1995, the Defendant, Francisco Martin Duran, was sentenced by this Court to 480 months in prison, followed by a five-year term of supervised release, for his April 4, 1995 conviction by jury on Counts One through Ten of the Superseding Indictment filed in this case on March 16, 1995. This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law with respect to the sentence imposed on each count, the term of supervised release, the special assessment, and the restitution.

 BACKGROUND

 The Defendant, Francisco Martin Duran, is a 26-year old male who has a high school diploma and thirty credit hours toward his college degree. Francisco Duran is also a man who loves guns and hates the United States government, including its leader, the President. Having travelled cross-country from Colorado and armed with a semiautomatic assault rifle under his trench coat, the Defendant positioned himself in front of the White House on October 29, 1994 and fired twenty-nine rounds in the direction of a tour group on the North lawn, whose members included one Dennis Basso a man resembling President Clinton. While the Defendant was attempting to reload his rifle with another 30-round clip, bystander heroically tackled him. Secret Service Officers reached the scene and arrested the Defendant. The testimonial and demonstrative evidence presented at trial plainly revealed that the Defendant's intent was to kill the President of the United States

 On April 4, 1995, a jury convicted the Defendant on all counts of the Superseding Indictment filed March 16, 1995, which charged him with Attempted Murder of the President of the United States, in violation of 18 U.S.C. § 1751(c) (Count One); Forcible Assaults on Officers of the United States, in violation of 18 U.S.C. § 111(a)(1) and (b) (Counts Two through Five); Possession of Firearms by a Convicted Felon, in violation of 18 U.S.C. § 922(g) (Counts Six and Seven); Injury and Depredation Against Property of the United States, in violation of 18 U.S.C. § 1361 (Count Eight' Carrying and Using a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c) (Count Nine); and Interstate Transportation of a Firearm, in violation of 18 U.S.C. § 924(b) (Count Ten).

 With the exceptions outlined below, the Court adopts as its findings of fact the information set forth by the Probation Officer in the revised Presentence Investigation Report ("PSR"), dated June 22, 1995.

 DISCUSSION

 The Defendant's objections to the PSR fall into two categories: items that do not affect the guideline range, and items that do affect the guideline range. The Probation Officer responded to many of the Defendant's objections by amending the PSR accordingly. With respect to those objections which the Probation Officer did not incorporate, however, the Court makes the following findings. The Court also sets forth its reasons for departing nine offense levels upward from the applicable guideline range.

 I. OBJECTIONS THAT DO NOT AFFECT THE GUIDELINE RANGE

 1) The Court Finds that the Probation Officer Appropriately Included in the PSR the "Aliases" Obtained from the National Crime Information Center

 The PSR lists fourteen aliases of the Defendant. PSR at p. 1b. Counsel for the Defendant requests that the PSR state that Mr. Duran provided law enforcement officials with his true name and that he at no time attempted to deceive law enforcement officers or the Court about his identity. Counsel also points out that six of the aliases are short forms of the Defendant's given first name.

 The Court agrees with the Probation Officer that the Presentence Investigation Report does not contain any information that suggests, directly or indirectly, that the Defendant attempted to deceive law enforcement officials, and the Court has not considered this information in determining the Defendant's sentence. In deference to the Defendant, however, the Court observes that there is no evidence on the record to suggest that the Defendant tried to deceive law enforcement officials about his identity at the time of his arrest or thereafter.

 The Court further observes that the information, which the Probation Officer acquired from the National Crime Information Center, could be relevant or important in the future, in the event of further criminal activity or violations of the conditions of the Defendant's supervised release. For that reason, and because there is no prejudice to the Defendant resulting from the inclusion of his aliases, the Court adopts the PSR's findings on this subject.

 2) The PSR Correctly States that the Court Granted a "Motion for an Independent Psychiatric and Psychological Examination of Defendant Duran "

 The PSR states that "on January 18, 1995 the Honorable Charles R. Richey granted a motion for an independent psychiatric and psychological examination of defendant Duran, pursuant to 18 U.S.C. §§ 4242(a) and 4247(b)." PSR at P 2 (emphasis added). Counsel for the Defendant requests that the word "independent" be replaced by the word "government" as the three doctors who testified as prosecution witnesses were chosen by the prosecution, and not the Court.

 The Court finds that the PSR is wholly accurate in that it reflects the title of the Government's Motion granted by the Court. The PSR is also consistent with the relevant statute, which states that "the court, upon motion of the attorney for the Government, shall order that a psychiatric or psychological examination of the defendant be conducted . . . ." 18 U.S.C. § 4242(a). Accordingly, the Court finds no merit to the Defendant's objection.

 3) In Response to the Defendant's Objection to the PSR's Statement that the Four Secret Service Officers "Ran" Through the Field of Fire, the Court Observes that Three of the Secret Service Officers Were Squarely Positioned Within the Field of Fire, and the Fourth Ran to Dodge the Defendant's Fire

 The PSR states that "four officers of the United States Secret Service ran through the defendant's field of fire in an attempt to stop the defendant." PSR at P 18. While correctly noting that the Defendant was convicted of assaulting, impeding, obstructing, or interfering with four Secret Service officers, defense counsel dispute that four officers ran through the field of fire and ask that the above-quoted phrase be changed to state that at least four Secret Service officers were on the White House grounds during the shooting.

 Upon careful scrutiny of the record, the Court finds that a more precise articulation of he evidence would be that three Secret Service officers were positioned in the field of fire, while a fourth Secret Service officer ran to avoid the field of fire. See, e.g., Testimony of Carl Anthony Persons, Tr. at 136 (March 22, 1995) (moved off to his right after seeing the gun barrel which was "moving in a sweeping motion back and forth, and moved -- it was moving in [his] direction"); Testimony of Henry Tejeda, Tr. at 78-83 (March 23, 1995) (on the north portico when the shooting started and then ran toward the Defendant); Testimony of Gary Sean Coffey, Tr. at 144 (March 23, 1995) ("noticed the barrel of a weapon protruding through the fence aimed in [his] direction;" the weapon was firing); Testimony of Harry O. Wilson, Tr. at 134-35 (Mar. 23, 1995) ("I was basically running out of [the Defendant's] way because he was shooting as he was running down the fence line in my direction."). While the PSR's statement is not flatly incorrect, the Court finds that a more accurate representation of the evidence is that, while three Secret Service officers were located in the field of fire, a fourth had to run to avoid the field of fire.

 4) The Jury Precisely Found the Defendant Had Not Proved, By Clear and Convincing Evidence, that He Was Insane at the Time of the Offense

 Although paragraph 96 of the PSR is not incorrect, the Court agrees with counsel for the Defendant that the jury's precise finding was that the Defendant failed to prove by clear and convincing evidence each element of the defense of insanity. See Final Jury Instructions (entered April 4, 1995); Verdict Form (entered April 4, 1995).

 II. OBJECTIONS THAT AFFECT THE GUIDELINE RANGE

 1) The Court Finds that the PSR Properly Places the Base Offense Level for Attempted Murder at 28, Pursuant to U.S.S.G. § 2A2.1(a)

 The Defendant cursorily objects to the PSR's calculation of the base offense level with respect to Counts One, Six, Seven Eight, and Ten. Section 2A2.1(a) provides that the base offense level for a crime of assault with intent to commit murder or attempted murder is 28 if the object of the offense would have constituted first degree murder; otherwise, it is 22. U.S.S.G. § 2A2.1(a). Asserting that the object of the offense in this case would not have constituted first degree ...


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