UNITED STATES OF AMERICA, Plaintiff-Appellee, Cross-Appellant, v. FRED FUCHS and ROY D. REAGAN, Defendants-Appellants, Cross-Appellees.
Nos. 98-10173
98-10174
98-10214
D.C. No. CR-96-00427-WDB
Appeal from the United States District Court
for the District of Arizona
William D. Browning, District Judge, Presiding
Argued June 14, 1999
Submitted July 2, 1999
Submission Vacated December 22, 1999
Resubmitted June 26, 2000
San Francisco, California
Filed July 6, 2000
OPINION
Before: Thomas G. Nelson, Michael Daly Hawkins and
Susan P. Graber, Circuit Judges.
Opinion by Judge T.G. Nelson; Dissent by Judge Graber
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COUNSEL
Richard A. Friedman, Assistant United States Attorney, Washington, D.C., for the plaintiff-appellee/cross-appellant.
Gerald Cunningham and Richard D. Biggs, Atlanta, Georgia, for the defendants-appellants/cross-appellees.
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OPINION
T.G. NELSON, Circuit Judge:
Fred Albano Fuchs and Roy Reagan appeal their convic-
tions and sentences for conspiring to commit offenses against
the laws of the United States. We have jurisdiction pursuant
to 28 U.S.C. S 1291 and reverse.
I.
The United States Forest Service has traditionally relied on
contracting with private parties to provide airtanker services
for fighting forest fires. In the 1980s, the airtanker fleet con-
sisted of C-119 twin engine, propeller-driven aircraft obtained
from the military. After several crashes of C-119s due to
structural defects, the C-119 fleet was grounded in 1987. Because the available airtanker fleet was substantially dimin- ished, the Forest Service needed to obtain additional aircraft for use in firefighting operations.
In December 1987, Lawrence Amicarella, Director of Fire
and Aviation Management for the Forest Service, directed
defendant Fred Albano Fuchs, Deputy Director of Fire and
Aviation, to send a letter to the Department of Defense
("DOD"), requesting that it cooperate with civilian contrac-
tors in obtaining military aircraft that could be converted to
airtankers. Defendant Roy Reagan was a private aircraft bro-
ker representing Hemet Valley Flying Service ("Hemet Val-
ley"), which was one of the companies that contracted with
the Forest Service to provide airtankers. At a meeting on
December 23, 1987, attended by both Fuchs and Reagan, the
Air Force was presented with the idea of transferring Air
Force C-130As to the Air Force Museum and then exchang-
ing the C-130As with Hemet Valley's grounded C-119s. However, at a subsequent meeting with representatives of the Air Force Museum, Air Force officials reacted negatively to the idea of conducting such an exchange.
Fuchs and Reagan later met with Mr. Duda of the General
Services Administration ("GSA") who introduced them to his
assistant, Mr. Albee. Apparently, Albee suggested that
exchanges be conducted without going through the Air Force
Museum and instead have the Forest Service become directly
involved. The Air Force would declare that the aircraft were
excess property and transfer the aircraft to GSA, thereby mak-
ing the aircraft available to other government agencies. Apparently, Albee stated that the government agencies that received excess aircraft were required to retain ownership of the aircraft.
Fuchs was given responsibility for coordinating the Forest
Service's exchange program. He did some research into the
regulations and also obtained copies of exchange agreements
that Reagan had used in previous transfers involving the mili-
tary. Fuchs did not discuss the exchange program with the
Forest Service Office of General Counsel. Each exchange
agreement was prepared by Fuchs, who presented them to
Amicarella who signed for the Forest Service. Fuchs signed
as a witness.
Although the exchange agreements contained language
stating that the exchange was made under authority of 41
C.F.R. S 101-46.203, the exchanges were not authorized by
that regulation because the items being exchanged were not
"historical items" as defined by 41 C.F.R.S 101-46.001-4, and
the C-130As and P-3s that were part of the program were
obtained by the Forest Service solely for the purpose of
exchange, a violation of 41 C.F.R. S 101-46.202(b)(6).