US Attorney admits no evidence to support earlier court argument

Wednesday, May 30th 2001, 12:00 am

By: News On 6

DENVER (AP) _ The U.S. Attorney Office knew there was no evidence to support an argument that Michael Fortier sold stolen guns to fund the Oklahoma City bombing, a defense attorney said.

A federal judge who sentenced Fortier to 12 years in prison and an appellate court which upheld the sentence that is three times the federal sentencing guidelines, cited Fortier's supposed knowledge that the gun sale was a ``fund raiser'' for the bombing.

Prosecutors admitted after sentencing that there was no evidence to back up that claim.

``We respectfully advise the court that we do not pretend to suppress our anger and our complete dissatisfaction with the United States Attorney in this latest episode of disinformation,'' Michael McGuire wrote in asking the 10th U.S. Circuit Court of Appeals to rehear the case.

Documents were made public Tuesday.

``Michael Fortier and his counsel believe this was deliberate and done with calculation to punitively influence the sentence in this case.''

Federal prosecutor Sean Connelly and defense attorney McGuire did not immediately return phone messages Tuesday seeking comment.

Fortier, 31, an Army buddy of Timothy McVeigh's, pleaded guilty to failing to warn authorities about the plot. He admitted that he helped McVeigh move and sell stolen weapons and that he lied to FBI agents after the April 19, 1995, attack that killed 168 people.

In March, a three-judge appellate panel rejected arguments that U.S. District Judge Thomas Van Bebber was vindictive and improperly exceeded the sentencing guidelines.

During sentencing, federal prosecutors argued Fortier should get more than sentencing guidelines because of the magnitude of the crime and because Fortier knew he was participating in a plot to raise money for the bombing.

During sentencing, prosecutors said McVeigh sat in Fortier's living room and discussed selling stolen weapons to raise money for the bombing. In a response filed May 15 in opposition to Fortier's rehearing request, Connelly concedes there was no evidence Fortier heard McVeigh refer to the sale as a fund raiser.

In 1998, Van Bebber sentenced Fortier, of Kingman, Ariz., to 12 years and fined him $200,000. Upon appeal, the appeals court said Van Bebber mistakenly used sentencing guidelines for crimes involving murder rather than manslaughter.

Van Bebber then resentenced Fortier to the same term and reduced the fine to $75,000.

The appellate court ruled 2-1 against Fortier on March 16. Circuit Judge John C. Porfilio argued that Van Bebber used improper sentencing guidelines because there was no evidence connecting Fortier to expenditures that facilitated the bombing.