United States v. Michael Bourquin ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0217p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-1465
v. │
│
│
MICHAEL LEE BOURQUIN, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:18-cr-20510-1—Thomas L. Ludington, District Judge.
Argued: December 3, 2019
Decided and Filed: July 17, 2020
Before: GRIFFIN, STRANCH, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati, Ohio,
for Appellant. Michael J. Freeman, UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio,
for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cincinnati, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Michael Bourquin
seeks an order from this Court reversing the district court’s application of a four-level
enhancement, pursuant to United States Sentencing Guidelines Manual § 2A6.1(b)(4), for
No. 19-1465 United States v. Bourquin Page 2
offense conduct resulting in a substantial expenditure of government funds. The district court
applied the enhancement even though the government did not introduce any accounting of funds
expended. Because we conclude that § 2A6.1(b)(4)(B) requires more, such as a full accounting
of expenditures or some accounting of expenditures coupled with facts that allow a sentencing
court to reasonably assess the full expenditure of funds required to respond to an offense and
whether those funds are substantial, we vacate the sentence imposed by the district court and
remand for resentencing consistent with this opinion.
I.
The following undisputed facts are taken from the underlying presentence report
(“PSR”). On August 8, 2017, Bourquin called the Federal Bureau of Investigation (“FBI”)
public access line in West Virginia to report a fabricated story about a planned crime. He
identified himself as a retired police officer, a twenty-year veteran of the Royal Oak Township
Police Department, and a convicted sex offender who served a term of incarceration at the
Southern Michigan Correctional Facility in Jackson, Michigan. Bourquin told the FBI that he
was walking his neighbor’s dog when an individual he knew as Raymond approached him.
According to Bourquin, he and Raymond were incarcerated together, and he tutored Raymond
and helped him with his release paperwork. Bourquin claimed Raymond was a part of the
Outlaw Motorcycle Club (“OMC”).
Bourquin said Raymond started telling him about a plot to abduct, rape, sodomize, and
set on fire a former federal prosecutor for the Eastern District of Michigan named B.M.
Bourquin stated that Raymond told him the OMC had B.M.’s schedule because she taught at the
University of Michigan, and that the kidnapping would take place two days later on August 10,
2017. According to Bourquin’s story, the “hit” came from Harry “Taco” Bowman, the OMC’s
leader, who was in federal custody serving a life sentence for a Racketeer Influenced and Corrupt
Organizations Act offense. Bourquin indicated Raymond felt comfortable sharing these details
because Bourquin helped him so much while he was incarcerated. Bourquin reported that he
then ended the conversation, returned his neighbor’s dog, went back to his condo, and eventually
called the FBI.
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Upon receiving the recording of Bourquin’s call, FBI employees spent several hours
transcribing, reviewing, and correcting the transcript. FBI agents then immediately had Bowman
placed into segregation and suspended his telephone calls, mail, and visitation. Correction
officers from the United States Bureau of Prisons in Butner, North Carolina, spoke with FBI
agents and confirmed they were aware of Bowman and his OMC leadership status. The
corrections officers confirmed that they already monitor Bowman’s mail and telephone calls very
closely due to circumstances surrounding his incarceration but that they had no information to
corroborate Bourquin’s story. On August 9, 2017, the day after receiving Bourquin’s false tip,
FBI agents from the local Raleigh, North Carolina office traveled to the Federal Correctional
Institute in Butner to interview Bowman about the possible threat against B.M. Bowman
acknowledged his OMC membership but said he had never heard of B.M., had never had any
interaction with B.M. (as his case originated out of, and was strictly handled by, the Middle
District of Florida), and was still going through the appeals process. Bowman denied having any
information regarding a threat against B.M. and did not know why someone would say he was a
threat to her.
Meanwhile, the FBI notified the United States Marshals Service about the threat to B.M.,
and the Marshals Service deployed a team of deputy marshals to B.M.’s residence to provide
twenty-four-hour surveillance. The FBI also coordinated security measures for B.M. and her
family with the Ann Arbor and University of Michigan Police Departments.
The FBI also contacted the Michigan Department of Corrections (“MDOC”) to identify
the person named “Raymond,” who Bourquin alleged communicated the threat and had been
previously incarcerated with him at MDOC. According to the government, the FBI and MDOC
identified over 600 inmates with the name “Raymond” and sought to determine whether any met
Bourquin’s description.
Also on August 9, 2017 (the day after Bourquin’s call), FBI agents traveled from
approximately one hour and thirty minutes away to meet with and interview Bourquin. Bourquin
told his story and went over the route he claimed to have taken before meeting with Raymond.
Agents reviewed the route and pulled video footage from a local business in the exact area where
Bourquin said he spoke with Raymond. The footage did not show Bourquin or Raymond.
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Agents went back to Bourquin’s residence and spoke with him again about the exact time and
spot where he met with Raymond. Bourquin reiterated he was certain about the time and spot,
but agents could not locate the two on any video footage.
Bourquin consented to a polygraph test. The agents transported Bourquin to the closest
polygraph examiner three hours away where the examiner administered a polygraph test from
approximately 10:45 p.m. until 2:30 a.m. After the polygraph test indicated that Bourquin had
fabricated his story, Bourquin admitted to lying. According to Bourquin, he made the story up
because he is a retired police officer and “wanted to be one of the good guys.”
On July 26, 2018, the government filed a one-count information charging Bourquin with
maliciously conveying false information concerning an attempt to kill, injure or intimidate B.M.
by means of fire, in violation of 18 U.S.C. § 844(e). On January 4, 2019, Bourquin pleaded
guilty to the charges without a plea agreement. Following Bourquin’s guilty plea, the United
States Probation Office prepared a PSR recommending that the district court apply a four-level
enhancement under U.S.S.G. § 2A6.1(b)(4), based on either of the following criteria: “(A)
substantial disruption of public, governmental, or business functions or services; or (B) a
substantial expenditure of funds to . . . otherwise respond to the offense.” Each party filed a
sentencing memorandum. Bourquin objected to the recommended enhancement, and in
response, the government described the investigative steps that law enforcement took based on
Bourquin’s false threat report and argued that these steps amounted to more than just a typical
investigation and required a substantial expenditure of funds.
During the sentencing hearing on April 25, 2019, after the parties reiterated their
arguments previously submitted in their sentencing memoranda, the district court overruled
Bourquin’s objection to the enhancement. The court reasoned that although there was “no
specific accounting on the associated costs of the Government activity that followed Mr.
Bourquin’s telephone call to the FBI’s center[,] . . . the investigation was obviously prompt” and
“involved a significant number of agents . . . not only in Ann Arbor but also in northern
Michigan.” The court also relied on the evidence showing that “[t]he United States Marshal[s]
Service . . . coordinated to place 24/7 surveillance on the target as well as family members, and
there were separate efforts that had to be coordinated with the [MDOC], all leading ultimately to
No. 19-1465 United States v. Bourquin Page 5
a polygraph examination.” Thus, the court found that, “[w]hile one cannot immediately put a
dollar figure on it, it’s clear that there were days and days of total manpower invested in the
effort.” Hence, the court applied the four-level enhancement.
Bourquin’s Guideline range was calculated at 37 to 46 months, and the district court
sentenced him to 40 months’ imprisonment, followed by two years of supervised release.
Bourquin timely appealed.
Bourquin appeals the district court’s decision to apply the four-level enhancement under
§ 2A6.1(b)(4)(B).
II.
“[W]e . . . review a district court’s calculation of the advisory sentencing Guidelines as
part of our obligation to determine whether the district court imposed a sentence that is
procedurally unreasonable.” United States v. Bullock, 526 F.3d 312, 315 (6th Cir. 2008) (citing
Gall v. United States, 552 U.S. 38, 51 (2007)). “We review a district court’s ‘legal conclusions
regarding application of the [g]uidelines de novo’ and any findings of fact for clear error.”
United States v. Oliver, 919 F.3d 393, 397 (6th Cir. 2019) (alteration in original) (quoting United
States v. Holcomb, 625 F.3d 287, 291 (6th Cir. 2010)). The same de novo standard applies when
a district court’s application of the Guidelines involves mixed questions of law and fact. United
States v. Stafford, 721 F.3d 380, 400 (6th Cir. 2013).
III.
A.
Section 2A6.1(b)(4) of the United States Sentencing Guidelines, regarding specific
offense characteristics, states that if an offense results in “(A) substantial disruption of public,
governmental, or business functions or services; or (B) a substantial expenditure of funds to
clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.” The district
court limited its focus to subsection (B), and that is the only subsection we consider on appeal.
Bourquin contends that the government failed to present sufficient evidence to support
the court’s four-level enhancement of his sentence under § 2A6.1(b)(4) as it submitted no
No. 19-1465 United States v. Bourquin Page 6
evidence on any expenditure of funds or proof that such expenditure was substantial. According
to Bourquin, for an expenditure to be “substantial” it must be more than what is spent in an
average case. He states that he confessed within 24 hours, that officers knew the threat was fake
within 24 hours, and that the government’s sentencing memorandum referencing “numerous
agents” and the involvement of different states in the investigation is not enough to support the
district court’s ruling. The government, on the other hand, posits that its sentencing
memorandum and the PSR sufficiently supported the § 2A6.1(b)(4)(B) enhancement by showing
that the government expended substantial funds in providing an immediate, multi-agency
response to Bourquin’s false threat report.
Bourquin’s position finds support in the enhancement’s text and our understanding of the
government’s burden. The relevant subsection requires proof of a “substantial expenditure of
funds,” § 2A6.1(b)(4)(B), and the government bears the burden of proving that an enhancement
applies by a preponderance of the evidence. United States v. Byrd, 689 F.3d 636, 640 (6th Cir.
2012). “[D]ue process requires that some evidentiary basis beyond mere allegation in an
indictment be presented to support consideration of such conduct as relevant to sentencing.”
United States v. Silverman, 976 F.2d 1502, 1504 (6th Cir. 1992) (emphasis omitted) (quoting
United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989)). The government, however, failed to
introduce any evidence about the money it spent to respond to Bourquin’s offense. Therefore, it
did not, and could not, meet its burden of proving a “substantial expenditure of funds.” Even if
the government demonstrated that it expended some amount of funds, the government failed to
offer proof that any expenditure of funds qualified as “substantial” rather than typical. As the
Seventh Circuit explained in United States v. Kirkpatrick, 385 F. App’x 610 (7th Cir. 2010), a
case analyzing what constitutes a “substantial disruption of . . . functions or services” under
subsection § 2A6.1(b)(4)(A), “[h]ow much disruption of governmental activity is ‘substantial’ is
a matter of degree.” Id. at 612. Although “[d]istrict judges have discretion about how to handle
open-ended concepts” including how to apply undefined Guideline terms like “substantial,” id.,
the Court must rely on evidence and not speculation to decide whether the degree of an
expenditure of funds qualifies as “substantial,” see Byrd, 689 F.3d at 640 (“[T]he government
bears the burden to prove, by a preponderance of the evidence, that a particular sentencing
enhancement applies.”).
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To our knowledge, no other court has allowed a § 2A6.1(b)(4)(B) enhancement to stand
without either a full accounting of expenditures or some accounting of expenditures coupled with
facts that allow the sentencing court to sufficiently assess the full expenditure of funds required
to respond to an offense and whether those funds are substantial. In United States v. Nissen, the
United States District Court for the District of New Mexico declined to apply § 2A6.1(b)(4)’s
four-level enhancement because the government failed to introduce any evidence of
expenditures. No. CR 19-0077 JB, 2020 U.S. Dist. LEXIS 97809, at *54-57 (D.N.M. June 3,
2020). In United States v. Devaughn, the United States District Court for the District of
Colorado held that a four-level enhancement under § 2A6.1(b)(4)(B) applied because,
“[a]lthough the government failed to submit verified expenses for each of the thirteen counts
until the day of sentencing,” the government submitted verified expenses of $3,236.06 for one of
thirteen letters the defendant filled with white powder and mailed to several politicians and
foreign consulates across the United States. Nos. 10-cr-00132-JLK, 10-cr-00254-JLK, 10-cr-
00379-JLK, 2011 U.S. Dist. LEXIS 8466, at *1-3, 10-11 (D. Colo. Jan. 28, 2011). From this
partial accounting, the district court could draw an inference about the costs associated with all
thirteen white powder envelopes. Id. at *11.
Considering § 2A6.1(b)(4)(B)’s text and the government’s burden of proof together with
cases analyzing the enhancement, we conclude that to demonstrate the applicability of subsection
(B), the government must introduce a full accounting of expenditures or some accounting of
expenditures coupled with facts allowing the court to reasonably assess the expenditure of funds
required to respond to an offense and whether those funds are substantial.
In the absence of on point case law favorable to its position, the government attempts to
analogize the application of § 2A6.1(b)(4)(B) to the application of U.S.S.G. § 2J1.3(b)(2), which
provides a three-level enhancement for certain conduct resulting in an interference with the
administration of justice. The government points to § 2J1.3(b)(2)’s Application Notes, which
state that “‘[s]ubstantial interference with the administration of justice’ includes . . . the
unnecessary expenditure of substantial governmental or court resources.” See U.S.S.G. § 2J1.3
app. n.1.
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The government then cites two Sixth Circuit cases—United States v. Jarrar, 99 F. App’x
726 (6th Cir. 2004), and United States v. Tackett, 193 F.3d 880 (6th Cir. 1999)—which upheld
enhancements under § 2J1.3(b)(2) without requiring the government to provide the particularized
number of hours expended to respond to offense conduct. The government’s analogy, however,
misses the mark because Jarrar and Tackett answered whether there was an unnecessary
expenditure of substantial government resources (e.g., time or money, Tackett, 193 F.3d at 887),
as opposed to a substantial expenditure of funds. Efforts by law enforcement in conducting a
multi-agency response over a period of time to prevent or investigate a crime, though perhaps
evidencing the expenditure of resources, does not inherently and sufficiently evidence a
substantial expenditure of funds to respond to an offense under § 2A6.1(b)(4)(B). The
government does not point to, and this Court does not find, any case law to the contrary. Thus,
we find that § 2A6.1(b)(4)(B) requires a complete accounting of funds expended or some
evidence of government expenditures coupled with facts that reasonably allow the court to assess
the full expenditure of funds required to respond to an offense and whether those funds are
substantial. Whether the funds are substantial, similar to a showing of a substantial expenditure
of government or court resources under § 2J1.3(b)(2), may be determined by making a common-
sense weighing of the totality of the government actions in conjunction with some showing of
the expenditure of funds. Here, however, the government has failed to present any evidence of
the expenditure of funds, meaning the court lacked an opportunity to assess whether funds were
expended, let alone weigh the degree of the spending.
The district court found that law enforcement’s prompt investigation and coordination of
efforts by multiple agents and agencies, in different places, amounted to days of total manpower,
and was thus a sufficient basis for the § 2A6.1(b)(4)(B) enhancement. The district court did so,
however, without any evidence of the amount of funds expended or other evidence allowing an
assessment of the full expenditure of funds required to respond to Bourquin’s offense and
whether those funds are substantial. Despite stating that it could not put a dollar figure on the
funds expended, the district court nonetheless surmised that a substantial amount was expended
over the relatively short investigation and applied the enhancement. We find that, in doing so,
the district court committed procedural error, as the government did not meet its burden of
No. 19-1465 United States v. Bourquin Page 9
showing, by a preponderance of the evidence, that there was a substantial expenditure of funds to
respond to Bourquin’s offense.
B.
Lastly, Bourquin asserts that, on remand, the Government should be precluded from
presenting additional evidence to meet its burden in support of the § 2A6.1(b)(4)(B)
enhancement. Such a “second bite at the apple,” according to Bourquin, would improperly
disregard that the government was on notice of his challenge to the enhancement but failed to
present sufficient evidence in support thereof. See United States v. Goodman, 519 F.3d 310, 323
(6th Cir. 2008). The government responds that it should be afforded a limited remand to
supplement the record with additional evidence. The government reasons that courts can provide
the government with an additional opportunity to present evidence on remand if the government
tenders a persuasive reason why fairness so requires.
We agree with Bourquin. The parties received notice of the four-level enhancement’s
potential application through the PSR. Admittedly, in his sentencing memorandum lodging
objections to his PSR, Bourquin argued that there was not a substantial disruption of public,
government, or business functions and said nothing about any expenditure of funds. Still, the
government filed its own sentencing memorandum and argued that, even outside of Bourquin’s
disagreement as to a disruption of functions, Bourquin’s offense still resulted in a substantial
expenditure of funds. To make this showing, the government submitted the same facts and
speculative arguments offered on appeal here. Moreover, when given a second opportunity at
Bourquin’s sentencing hearing to respond to Bourquin’s arguments or state its position on the
enhancement, the government merely summarized the contents of its sentencing memorandum.
Ultimately, then, the government failed to meet its burden of sufficiently showing that there was
a substantial expenditure of funds to respond to Bourquin’s offense, despite the notice that
Bourquin contested the § 2A6.1(b)(4) enhancement and despite two opportunities to argue the
issue. We see no persuasive reason why fairness would require that the government be afforded
another opportunity to prove that a substantial expenditure of funds occurred in response to
Bourquin’s offense. See Goodman, 519 F.3d at 323 (holding that where the Government failed
No. 19-1465 United States v. Bourquin Page 10
to establish that the defendant had used a firearm in connection with his crime, resentencing
should be conducted based on the existing record).
IV.
Therefore, we vacate the sentence and remand for resentencing consistent with this
opinion.