Appeals judge questions length of sentence

Friday, September 29th 2000, 12:00 am
By: News On 6

OKLAHOMA CITY (AP) -- A federal appeals judge says it appears Michael Fortier's 12-year prison term on charges connected to the Oklahoma City bombing is too severe.

Fortier pleaded guilty in 1995 to helping Timothy McVeigh move and sell stolen guns, to never telling anyone about the bomb plot and to lying to FBI agents after the April 19, 1995, blast that killed 168 people.

He contends in an appeal that U.S. District Judge G. Thomas Van Bebber was vindictive and abused his discretion in again sentencing him to 12 years in prison.

Van Bebber held a second sentencing hearing in October 1999 after the 10th U.S. Circuit Court of Appeals in Denver said he used the wrong sentencing guidelines originally.

On Thursday in Denver, a three-judge panel of the 10th Circuit heard arguments on whether Fortier's sentence should be reduced.

"It seems the wrong guideline was used," Judge John C.

Porfilio said. The two other judges did not indicate what they thought. A ruling on the appeal isn't expected for several months, The Daily Oklahoman reported.

Porfilio questioned Justice Department attorney Sean Connelly, who argued that Van Bebber was within his rights to set the same prison term on the second sentencing. He said Van Bebber was fair.

Porfilio, who had been on the panel hearing Fortier's first appeal, noted that prosecutors had said before that there was no evidence tracing Fortier to any expenditures that facilitated the bombing.

"Now you're saying there's circumstantial evidence," Porfilio said. "I don't understand."

The issue of whether Fortier's proceeds from the gun sales helped finance the blast is important because Van Bebber concluded Fortier "should have known his sale of the firearms had the capacity to further the bombing."

Van Bebber used that argument, in part, to justify a longer prison sentence.

Porfilio said there appears not to be enough evidence to support that conclusion. He said there had to be a strong link between one's actions and the resulting violence to justify a longer prison term.

Connelly said the connection between how Fortier used the money and the bombing was enough. He said Fortier received $2,000 and turned it over to McVeigh.

Michael McGuire, Fortier's attorney, said no one knows how the money was used. He said Van Bebber used "a murder rationale ...

when there's absolutely no intent to kill any of these people" on Fortier's part.

McGuire said Fortier should have been sentenced to no more than 37 months. He said Fortier should be released immediately.

McVeigh was convicted of the bombing and eight counts of murder and is on the federal death row. Terry Nichols was convicted of conspiracy and eight counts of involuntary manslaughter and was sentenced to life in prison. He has been charged in Oklahoma with 160 counts of murder.