Guide

MARC D. BLACKMAN, OSB No. 730338 E-mail: marc@ransomblackman.com RANSOM BLACKMAN LLP 1400 Congress Center 1001 S.W.
Fifth Avenue Portland, Oregon 97204-1144 Telephone: (503) 228-0487 Facsimile: (503) 227-5984 Of Attorneys for Defendant Jonathan Christopher Mark Paul
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JONATHAN CHRISTOPHER MARK PAUL, ) ) Defendant. ) )
NO. CR 06-60125-AA DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4]
R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400 Portland, Oregon 97204-1144 Telephone: 503-228-0487 Facsimile: 503-227-5984
TABLE OF CONTENTS Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 LEGAL AND FACTUAL SETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. B. C. The Allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Factual Basis of Defendant Pauls Guilty Plea . . . . . . . . . . . . . . . . . . 6 The Evidence Concerning the Nature and Purpose of Mr. Pauls Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
LEGAL DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 A. B. C. The Pertinent Statutes and Guideline Provision . . . . . . . . . . . . . . . . . . . 10 Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 The Purely Legal Reasons U.S.S.G. 3A1.4 is inapplicable to Mr. Pauls Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. A violation of 18 U.S.C. 844(i) not alleged to have been calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct is not a Federal crime of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A violation of 18 U.S.C. 844(i) that does not involve acts dangerous to human life or personal injury as a direct or proximate result of the offense is not a Federal crime of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A violation of 18 U.S.C. 844(i) not alleged to have involved conduct transcending national boundaries is not a Federal crime of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 18 U.S.C. 371 is not a Federal crime of terrorism. . . . . . . . . . 20
2.
3.
4.
Page i -
DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
Portland, Oregon 97204-1144 Telephone: 503-228-0487 Facsimile: 503-227-5984
5.
A violation of 18 U.S.C. 371 alleged to involve the commission of an offense that is not alleged to be a Federal crime of terrorism is not intended to promote a Federal crime of terrorism and therefore not a basis for applying U.S.S.G. 3A1.4 (2000). . . . . . . . . . . . . . . . . . . . . . . . . 21 An upward departure may not be imposed under U.S.S.G. 3A1.4 (2000) for an offense committed in 1997 the motive for which was to intimidate or coerce a civilian population, not influence or affect the conduct of government. . . 22
6.
D.
The Purely Factual Reasons U.S.S.G. 3A1.4 is inapplicable to Mr. Pauls Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 1. 2. The destruction of the Cavel W est slaughterhouse was not a Federal crime of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 The conspiracy in which Mr. Paul participated was not a Federal crime of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Page ii -
TABLE OF AUTHORITIES Page Federal Cases Haouari v. United States, 429 F. Supp.2d 671(S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . 16 James v. United States, __ U.S. __, 127 S. Ct. 1586 (2007) . . . . . . . . . . . . . . . . . . . . . 18 Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987) . . . . . . . . . 23 United States v. Afshari, 426 F.3d 1150 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 18 United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . 21 United States v. Castaneda, 9 F.3d 761 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Collado, 975 F.2d 985 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . 30, 31 United States v. Dare, 425 F.3d 634 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 12, 22 United States v. Evans, 155 F.3d 245 (3d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Franklin, 321 F.3d 1231 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Garey, 383 F. Supp.2d 1374 (M. D. Ga. 2005) . . . . . . . . . . . . . . . . . . 19 United States v. Graham, 275 F.3d 490 (6th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 21 United States v. Gutierrez-Hernandez, 94 F.3d 582 (9th Cir. 1996) . . . . . . . . . . . . . . . 31 United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 23 United States v. Hale, 448 F.3d 971 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 United States v. Harris, 434 F.3d 767 (5th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Jordi, 418 F.3d 1212 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . 14, 15 United States v. Kilby, 443 F.3d 1135 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . 12, 22 United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . 16, 21 United States. v. Mannino, 212 F.3d 835 (3d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 30 Page iii DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
United States v. McMullen, 86 F.3d 135 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Mintz, 928 F. Supp. 1063 (D. Kan. 1996) . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Ortiz, 362 F.3d 1274 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 30 United States v. Petty, 982 F.2d 1374 (9th Cir.1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Riley, 335 F.3d 919 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 United States v. Rockwell, 984 F.2d 1112 (10th Cir.), cert. den., 508 U.S. 966, 113 S. Ct. 2945, 124 L. Ed. 2d 693 (1993) . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Salim, 287 F. Supp.2d 250 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . 19 United States v. Sarkisian, 197 F.3d 966, 990 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . 31 United States v. Smith, 354 F.3d 171 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 United States v. Torres, 81 F.3d 900 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Whitecotton, 142 F.3d 1194 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 30 United States v. Young, 33 F.3d 31 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 United States v. Zagari, 111 F.3d 307 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 23 United States v. Zelaya, 114 F.3d 869 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 31 Federal Statutes 18 U.S.C. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20 18 U.S.C. 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 20 18 U.S.C. 844(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15, 16 18 U.S.C. 844(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15, 16, 18, 26 18 U.S.C. 2331(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 18 U.S.C. 2331(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18 18 U.S.C. 2332b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Page iv DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
18 U.S.C. 2332b(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 18 U.S.C. 2332b(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 13, 19 18 U.S.C. 2332b(g)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 18 U.S.C. 2332b(g)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13 18 U.S.C. 2332b(g)(5)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 18 U.S.C. 2340A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20 22 U.S.C. 2656f(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 AEDPA, Pub.L. 104-132, 1996, Title VII, 702(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Pub. L. 100-204, 1987 HR 1777 (December 22, 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 18 Pub. L. 104-132, 1996, Title VII, 730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Federal Rules U.S.S.G. 1B1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 29-31 U.S.S.G. 2K1.4(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 U.S.S.G. 3A1.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim State Statutes ORS 137.707(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 164.305(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 164.305(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 164.315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 164.325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 ORS 477.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 477.001(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 ORS 479.010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Page v DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
INTRODUCTION1 Defendant Paul was originally indicted with 12 others in the case commonly known as United States v. Dibee, et. al., United States District Court Case No. CR 06-60011-AA. A Second Superseding Indictment was filed in that case in May, 2006. Each of the indictments filed in Case No. CR 06-60011-AA covered many years [10] and many events [24]. Three of the defendants in the Second Superseding Indictment are fugitives. The other ten have resolved their cases as outlined here. In July, 2006, separate Informations were filed against six of the defendants, each of whom entered pleas of guilty pursuant to plea agreements in the following cases: United States v. Darren Thurston, United States District Court for the District of Oregon Case No. CR 06-60069. United States v. Kevin Tubbs, United States District Court for the District of Oregon Case No. CR 06-60070. United States v. Kendall Tankersley, United States District Court for the District of Oregon Case No. CR 06-60071. United States v. Stanislas M eyerhoff, United States District Court for the District of Oregon Case No. CR 06-60078. United States v. Chelsea Gerlach, United States District Court for the District of Oregon Case No. CR 06-60079.
Counsel for defendant Paul received the draft Presentence Report on May 2, 2007. As of the filing deadline for this Memorandum, he will not have time to review it with his client. Therefore, this memorandum addresses only the Terrorism Guideline of U.S.S.G. 3A1.4. It is anticipated that objections to the draft Presentence Report will be submitted in the ordinary course and that additional memoranda and other materials pertinent to the Courts ultimate sentencing decision will be filed prior to defendants sentencing. Page 1 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
United States v. Suzanne Savoie, United States District Court for the District of Oregon Case No. CR 06-60080. Each Information contained a broad conspiracy count similar to that set out in the Second Superseding Indictment and substantive counts addressing the particular events in which that defendant acknowledged participating. In November, 2006, separate Informations were filed against the four remaining defendants, each of whom entered pleas of guilty pursuant to plea agreements in the following cases: United States v. Block, United States District Court for the District of Oregon Case No. CR 06-60123. United States v. McGowan, United States District Court for the District of Oregon Case No. CR 06-60124. United States v. Paul, United States District Court for the District of Oregon Case No. CR 06-60125. United States v. Zacher, United States District Court for the District of Oregon Case No. CR 06-60126. Like the Informations filed in July, 2006, the Informations in these cases contained a broad conspiracy count similar to that set out in the Second Superseding Indictment, followed by one or more substantive counts addressing the particular events in which that defendant participated. The plea agreements in the two sets of cases filed in July and November had many differences, but they had two elements in common: (1) disagreement about whether the terrorism guideline of U.S.S.G. 3A1.4 applied to each defendants particular conduct; and (2) agreement to judicial fact-finding and resolution of this issue. As set forth in defendant Pauls agreement: Page 2 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
5. Resolution of Sentencing Issues: In addition to waiving the right to a jury trial on the issue of guilt, defendant knowingly and voluntarily agrees that sentencing issues in this case need not be alleged in a grand jury indictment, proven to a trial jury, or proven beyond a reasonable doubt. Defendant also knowingly and voluntarily consents to judicial fact-finding and resolution of any and all sentencing issues. Defendant and Government agree that the guidelines calculations should be derived from the United States Sentencing Commission Guidelines Manual with effective date of November 1, 2000. 6. Guideline Enhancement: The USAO will recommend the terrorism guideline enhancement found in U.S.S.G. 3A1.4 because the felony offenses either involved or were intended to promote a Federal crime of terrorism. The defendant reserves the right to argue against the application of this guideline section. Paul Plea Agreement at 2. Application of the terrorism guideline presents numerous issues. Some are purely legal and common to all cases. Others are purely factual and unique to each defendant. And yet others are mixed issues of law and fact that may or may not impact more than one case. As to those issues that are common to all defendants, defendant Paul expressly adopts the arguments presented by the defendants in the nine related cases listed above. This Memorandum first reviews the allegations against Mr. Paul, the factual basis of his plea, and circumstances surrounding those facts. It then attempts to address each of the legal issues regarding the application of the terrorism guideline to the conspiracy and arson charges to which Mr. Paul plead guilty. It focuses, however, on those issues that most simply and clearly demonstrate that U.S.S.G. 3A1.4 does not apply. // // // Page 3 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
LEGAL AND FACTUAL SETTING A. The Allegations
The allegations in the Information filed against defendant Paul all relate to a specific event, the July 21, 1997 arson of the Cavel W est, Inc. horse slaughterhouse in Redmond, Oregon. The only allegations in the conspiracy count that mention Mr. Paul involve the Cavel W est arson. It is also the only subject of the substantive arson count. Defendant Pauls role in these offenses is described as follows in the conspiracy count of the Information: On or about July 21, 1997, at Redmond, Deschutes County, Oregon, defendant..PAUL [and others] unlawfully and willfully caused and aided, abetted, counseled, commanded, induced, and procured the malicious damaging and destroying, by means of fire and an explosive, of a building and other real and personal property used in interstate commerce and in activities affecting interstate commerce, at Cavel West, Inc., 1607 SE Railroad, Redmond, Oregon. Approximately one week prior to the July 21, 1997 arson at Cavel W est, Inc...defendant PAUL [and others] went on a reconnaissance in order to locate a staging area where the participants could complete final preparations prior to committing the arson. Prior to the July 21, 1997 arson at Cavel West Inc., defendant PAUL [and others] prepared a mixture of soap and petroleum products which was the fuel used in the time-delayed incendiary devices. On or about July 21, 1997, defendant PAUL [and others] drove to the previously chosen staging area near Cavel West, Inc., and upon arrival dressed in dark clothing, masks, and gloves, and dug a hole at the staging area in which to bury their dark clothing upon completion of the arson. On or about July 21, 1997, defendant PAUL [and others] completed a twoway radio check with one another and confirmed their scanner and radios functioned properly. On or about July 21, 1997, defendant PAUL [and others] went to the location of Cavel West, Inc., to place time-delayed incendiary devices on and about that location. Page 4 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
On or about July 21, 1997, defendant PAUL [and others] upon placing the time-delayed incendiary devices at Cavel West, Inc., traveled back to the staging area, removed their dark clothes and shoes, placed them in the hole, poured acid on the clothing in the hole and then buried the items. Paul Information at 8-10. The conspiracy count also alleges that following this arson, certain defendants... issued a written communique attributing the fire to the Animal Liberation Front (ALF) and the Equine and Zebra Liberation Front. Paul Information at 10. This communique authored, according to discovery, by Kevin Tubbs on July 26, 1997 [CW 302 Discovery at 00028-29; Romania Discovery at 1007] - read in its entirety: Greetings, On Monday, July 21, 1997, under nearly a full moon, the Animal Liberation Front paid a visit to the Cavel West Horse Murdering Plant at 1497 SE Railroad Avenue in Redmond, Oregon. About 35 gallons of vegan jello was brought in with the team. Next, a number of large holes were drilled into the rear wall of the slaughterhouse office to bypass potential alarms on the doors or windows. Next, the area that housed the refrigeration units was located and again large holes were drilled through the wall of that part of the slaughterhouse. Two teams then poured the jello into the numerous holes and quickly began to assemble the three electronically-timed incendiary devices that would bring a screeching halt what countless protests and letter writing campaigns could never stop. While these devices were being assembled some members of the team entered a storage shed/office/construction site (all part of Cavel Wests operations) and left the remaining 10 gallons or so of jello for dessert. Then two gallons of muriatic acid was poured into the air conditioning vents to taint and destroy any horse flesh that may have survived the fire. Finally, the incendiary devices were set to ignite at exactly the same time. Unfortunately, as the battery was being connected to the device at the refrigeration unit, a spark started that entire area on fire! Fortunately, we had very thorough back-up plans in case anything went wrong and this insured that our departure went quick and smooth. At least $1,000,000 of damage has been done and the entire plant is currently closed and out of // // Page 5 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
operation! The media blackout of this action is intense and thorough but you know what?...The horses dont mind. ANIMAL LIBERATION FRONT Cavel West Discovery at 00011 and 00417. The substantive count of the Information alleged, in its entirety: On or about July 21, 1997, at Redmond, Deschutes County, Oregon, in the District of Oregon, defendants KEVIN TUBBS, JOSEPH DIBEE, JONATHAN CHRISTOPHER MARK PAUL, JENNIFER LYNN KOLAR, and other persons known to the Grand Jury, unlawfully and willfully caused and aided, abetted, counseled, commanded, induced, and procured the malicious damaging and destroying, by means of fire and an explosive, of a building and other real and personal property used in interstate commerce and in activities affecting interstate commerce, at Cave1 West, Inc., 1607 SE Railroad, Redmond, Oregon; all in violation of Title 18, United States Code, Sections 844(i) and 2. Paul Information at 26-27. B. The Factual Basis of Defendant Pauls Guilty Plea
According to discovery, Kevin Tubbs found Cavel West as the target for destruction in approximately June or July 1997, after reading in the newspaper where they detailed the slaughtering of horses. CW 302 Discovery at 00025; Romania Discovery at 1005; Kolar 302 Discovery at 4-5. The factual basis of Defendant Pauls plea of guilty to conspiracy and arson was set forth in Attachment 1 to his October 17, 2006 plea agreement with the government and paragraph 25 of his November 9, 2006 Plea Petition. The former stated: Beginning in October 1996 and continuing through October 2001, in the District of Oregon and elsewhere, defendant Jonathan Christopher Mark Paul and various persons at various times willfully and knowingly conspired and agreed to maliciously damage or destroy, or attempt to damage or destroy, by means of fire, buildings, vehicles, and other personal and real property owned in whole or in part by, or possessed by or leased to, others. Some of these persons intended to damage or destroy, Page 6 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
attempt to damage or destroy, or did damage or destroy such property of the United States or a department or agency of the United States. Some intended to damage or destroy, attempt to damage or destroy, or did damage or destroy property of entities engaged in activity affecting interstate commerce. Some intended to damage or destroy, attempt to damage or destroy, or did damage or destroy property of an energy facility of the United States involved in the transmission of electricity. Some intended to damage or destroy or attempt to damage or destroy all such property. The purpose of some of the conspirators was to influence and affect the conduct of government. The purpose of other conspirators was to influence and affect the conduct of commerce, private business, and others in the civilian population. All conspirators intended to and did participate in acts of violence, sabotage, or destruction of property potentially dangerous to human life and property in violation of the criminal laws of the United States and the State of Oregon. In July, 1997, in the District of Oregon, defendant Paul knowingly conspired and agreed with others to maliciously damage or destroy or attempt to damage or destroy by means of fire, buildings, other real property, and personal property owned in whole or in part or possessed by or leased to an entity engaged inactivity affecting interstate commerce as more particularly set forth in Count 2. The latter recited: 25A. Conspiracy to commit arson: Beginning in October 1996 and continuing through October 2001, in the District of Oregon and elsewhere, I and various persons at various times willfully and knowingly conspired and agreed to maliciously damage or destroy, or attempt to damage or destroy, by means of fire, buildings, vehicles, and other personal and real property owned in whole or in part by, or possessed by or leased to, others. I personally conspired, agreed, and intended to damage and destroy and did damage and destroy property of entities engaged in activity affecting interstate commerce. M y purpose was to influence and affect the conduct of commerce, private business, and others in the civilian population. Like other conspirators, I intended to and did participate in an act of violence, sabotage, and destruction of property which was dangerous to property and potentially dangerous to the persons who responded to the fire resulting from my action, which was in violation of the criminal laws of the United States and the State of Oregon. Page 7 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
As more particularly set forth in 25B, below, in July, 1997, I knowingly conspired and agreed with others to maliciously damage or destroy or attempt to damage or destroy by means of fire, buildings, other real property, and personal property owned in whole or in part or possessed by or leased to Cavel West, Inc. in Redmond, Oregon which was used to slaughter horses for pet food and human consumption. This facility was used in interstate and foreign commerce and activities affecting interstate and foreign commerce. 25B Malicious destruction of property used in or affecting interstate commerce by means of fire: A few months before July 21, 1997, I discussed with another person the idea of taking action to put the Cavel West horse slaughterhouse operation in Redmond, Oregon out of business. Thereafter, on at least one occasion I met with others to plan the action, which we agreed would consist of an effort to destroy the facility by fire. Sometime before July 21, 1997, I made a mixture of soap and diesel to be used as fuel for this fire. Although I do not distinctly recall doing so, I believe that at some point before July 21, 1997, I and others performed a surveillance of the Cavel West facility as part of our plan to destroy it by fire. On July 21, 1997, I traveled to Redmond, Oregon with the soap/diesel mixture, rendezvoused with others, prepared with them somewhere outside of Redmond, Oregon to commit the arson, and traveled to the Cavel West facility. Once there, we conducted a surveillance in an effort to assure that no humans or animals were in the areas we intended to set on fire. I then served as the look-out while others sought to introduce the soap/diesel mixture into the facility at several locations. The plan was to do so in a way that would provide a delay between the time the mixture was introduced into the facility and the time it ignited. However, for some reason, at least one location the mixture prematurely ignited. We immediately departed the scene, returned to the rendezvous site outside Redmond, Oregon, disposed of the clothes we were wearing, and left the area. Paul Plea Petition at 25. // // Page 8 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
C.
The Evidence Concerning the Nature and Purpose of M r. Pauls Conduct
Discovery reveals no involvement by Mr. Paul in incidents involving acts of violence, sabotage, or destruction of property of the United States or a department or agency of the United States. Nor does it disclose an expression of intention by him of acting for the purpose of influencing or affecting the conduct of government. On the contrary, discovery discloses that the objects of his activism were the private corporations engaged in interstate commerce that were inhumanely treating animals. Perhaps the most persuasive evidence of this was Mr. Pauls presentation at the March 6, 1998 Environmental Law Conference held at the University of Oregon. This presentation was monitored by Eugene Police Detective Terry Willis, who reported: Paul...recalled his conversion occurred as a young 15 year old hunter in England and watching a bird suffer from being shot. He killed it with a rock and immediately converted his beliefs to become a Vegan vegetarian. He later committed himself to the Hunt Saboteurs with other Hunt Subs and mentioned that other saboteurs were in the audience. Paul said his best action occurred in 1987 when EF/ALF and other urban activists stopped a big horn sheep hunt. Paul commented that movements must come together. He encouraged others to become informed and said he learned about philosophies especially between EF and ALF and said a bridge has developed between the two movements. Past tactical differences with ALF as radical and extreme, which have been perceived as violent, should not be judged by others. Paul emphasized we cannot judge others when they are defending life. We should judge the corporate enemy who are raping the planet. Paul cited an example where BLM vehicle tires were slashed in S. Oregon during an action. He claimed that people should not focus on these acts but should concentrate on corporations that pillage the planet. *** Page 9 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
Paul justified his past actions because they are not violent. He does not consider it violence against an inanimate object such as striking this table. He does not care about the table except it may require some wood use to replace it. Actions are an evolvement and will become more extreme. Current actions are in fact stale and are not stopping them (corporations). Actions need to evolve that includes actions at night. * * * Paul said people come to him saying that burning down those labs is a bad thing. But he justified it by using an analogy of burning down the German prison camp, Auschwitz. He claimed that if one could have stopped all that killing by burning down the camp, wouldnt you do it? Since the answer is obviously yes, are you being speciest, he asked the audience. He jokingly replied he was not advocating the burning down of places and everyone laughed. Another question asked of Paul was how to awaken the public vs. alienating them. Paul responded that most ALF actions that involved the breaking into labs actually exposed the cruel acts against animals. He said that direct action has a place. Society is brain dead and we need to awaken them. The real enemy is the corporations. April 6, 1998 Criminal Intelligence Memo to Police Command From Det. Terry Willis: Jonathan Paul, a ALF Activist, visits and lectures at the University of Oregon Environmental Law Conference on March 6, 1998 [emphasis added]. LEGAL DISCUSSION A. The Pertinent Statutes and Guideline Provision 1. 18 U.S.C. 371 If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. 2. 18 U.S.C. 844(i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, Page 10 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not less than 7 years and not more than 40 years, fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment. 3. 18 U.S.C. 2332b(g)(5) the term Federal crime of terrorism means an offense that(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and is a violation of(i) 4. U.S.S.G. 3A1.4 (2000) (a) If the offense is a felony that involved, or was intended to promote, a Federal crime of terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. In each such case, the defendants criminal history category...shall be Category VI. section...844(f) or (i) (relating to arson and bombing of certain property) * * * * *2
(B)
(b) // //
18 U.S.C. 2332b(g)(5)(B)(i) lists 37 statutory offenses in numerical order as they appear in the Criminal Code, from 18 U.S.C. 32 (relating to destruction of aircraft or aircraft facilities) through 18 U.S.C. 2340A (relating to torture). 18 U.S.C. 371 (Conspiracy to commit offense or to defraud United States) is not included. Page 11 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
5.
Application Note 1 to U.S.S.G. 3A1.4 (2000): Federal Crime of Terrorism is defined at 18 U.S.C. 2332b(g).
B.
Burden of Proof
As a general rule, the preponderance of the evidence standard is the appropriate standard for factual findings used for sentencing. United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005). However, where a sentencing factor would have an extremely disproportionate effect on the sentence, the government may have to satisfy a clear and convincing standard of proof. United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006) [citing Dare]. By this criteria, the clear and convincing evidence standard must be used in determining whether U.S.S.G. 3A1.4 applies in this case. The substantive arson offense with which Mr. Paul was charged3 has a maximum Base Offense Level of 21. U.S.S.G. 2K1.4(a). 4 Mr. Pauls Criminal History Category is I. Without an enhancement under U.S.S.G. 3A1.4, therefore, his sentencing range is 51-63 months. 5 With that
As well as the conspiracy count, per U.S.S.G. 2X1.1(b)(2).
The draft Presentence Report computes an Offense Level of 21 for the Cavel West arson by applying the subsection of U.S.S.G. 2K1.(a)(4) that produces the highest Base Offense Level justified by the facts [which the draft report finds to be the Property Damage or Destruction portion of that guideline and therefore 6] plus 13 for the monetary value of the loss under U.S.S.G. 2B1.1 plus 2 for more than minimal planning under U.S.S.G 2B1.3(b)(3). Defendant accepts this computation for purposes of this burden of proof discussion; reserving to a later date any challenge to its correctness. Without the 17 level downward departure provided for in 13B of the plea agreement. Page 12 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
enhancement, his offense level increases to 33 and his Criminal History Category increases to VI, resulting in a sentencing range of 168-210 months. Such nearquadrupling of the presumptively appropriate punishment has an extremely disproportionate effect on the sentence. The burden of proof that must be applied when determining whether a defendant is subject to a sentencing enhancement under U.S.S.G. 3A1.4 is therefore clear and convincing evidence. C. The Purely Legal Reasons U.S.S.G. 3A1.4 is inapplicable to Mr. Pauls Offenses 1. A violation of 18 U.S.C. 844(i) not alleged to have been calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct is not a Federal crime of terrorism.
A defendant is subject to the sentencing enhancements of U.S.S.G. 3A1.4 only for an offense constituting a Federal crime of terrorism as defined by 18 U.S.C. 2332b(g). Under 18 U.S.C. 2332b(g), the substantive offenses listed in 18 U.S.C. 2332b(g)(5)(B) qualify as Federal crimes of terrorism only when their commission is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. 18 U.S.C. 2332b(g)(5)(A). Absent allegations and proof that a defendant acted with this purpose, the sentencing enhancements of U.S.S.G. 3A1.4 do not apply. Neither the Information, Attachment 1 to Mr. Pauls October 17, 2006 plea agreement, nor the factual basis for his plea [25 of his November 9, 2006 Plea Petition] attributes such a purpose to the destruction of the Cavel West horse slaughterhouse. On the contrary, this arson is alleged only to have obstruct[ed], delay[ed], or affect[ed] interstate or foreign commerce. Page 13 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
That this purpose is insufficient to trigger the terrorism enhancement of U.S.S.G. 3A1.4 is clear not only from the literal definition of Federal crime of terrorism incorporated into that guideline, but amendments and modifications to it adopted after 2000. In 2002, the Sentencing Commission added Application Note 4 to this section. That note provides, in relevant part: By the terms of the directive to the Commission in section 730 of the Antiterrorism and Effective Death Penalty Act of 1996, the adjustment provided by this guideline applies only to Federal crimes of terrorism. However, there may be cases in which...(B) the offense involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In such cases an upward departure would be warranted, except that the sentence resulting from such a departure may not exceed the top of the guideline range that would have resulted if the adjustment under this guideline had been applied. In explaining this 2002 amendment, the Commission noted: ...[T]he amendment adds an encouraged, structured upward departure in 3A1.4 (Terrorism) for offenses that involve terrorism but do not otherwise qualify as offenses that involved or were intended to promote Federal crimes of terrorism for purposes of the terrorism adjustment in 3A1.4. The amendment provides an upward departure, rather than a specified guideline adjustment, because of the expected infrequency of these terrorism offenses and to provide the court with a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis... U.S.S.G. Manual, Supplement to Appendix C, Amendment 637 [effective November 1, 2002]. The adoption of this Application Note confirms that the terrorism adjustment of U.S.S.G. 3A1.4 does not apply to an offense that involved, or was intended to promote, one of the offenses specifically enumerated in 18 U.S.C. 2332b(g)(5)(B), but the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government... See United States v. Jordi, Page 14 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
418 F.3d 1212 (11th Cir. 2005), a case arising out of events that took place after the adoption of Application Note 4, in which the Court explicitly recognized that only a departure, not a terrorism enhancement, could be imposed where the terrorist motive was to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. United States v. Jordi, 418 F.3d at 1215. The pleadings, factual basis of Mr. Pauls guilty plea, and pertinent discovery establishes that object of the arson of the Cavel West, Inc. horse slaughterhouse was a corporation engaged in interstate commerce, not property of the United States, and that its purpose was to influence or affect private commerce, not the conduct of government. Hence, under U.S.S.G. 3A1.4 (2000), an offense against private property was not a Federal crime of terrorism. Moreover, because the guidelines did not then authorize an upward departure for an offense intended to intimidate or coerce a civilian population, this offense cannot subject a defendant to an upward departure for an offense committed before November 1, 2002. 2. A violation of 18 U.S.C. 844(i) that does not involve acts dangerous to human life or personal injury as a direct or proximate result of the offense is not a Federal crime of terrorism.
Defendant Paul acknowledges that the literal language of 18 U.S.C. 2332b(g)(5)(B)(i) renders any violation of 18 U.S.C. 844(i) a Federal crime of terrorism if calculated to influence or affect the conduct of government. He also acknowledges that two courts have assumed without discussion that, in the presence of the predicate motivation, any violation of 18 U.S.C. 844(i) may support the Page 15 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
sentencing enhancement of U.S.S.G. 3A1.4. See United States v. Mandhai, 375 F.3d 1243, 247 (11th Cir. 2004); Haouari v. United States, 429 F. Supp.2d 671, 681 (S.D.N.Y. 2006). He notes, however, that 18 U.S.C. 844(i) is substantively identical to 18 U.S.C. 844(f) [which criminalizes the arson of government, rather than private, property] and that both create three distinct offenses, one for arsons that only damage real or personal property, a second that more severely punishes arsons resulting in personal injury, and a third that most severely punishes arsons resulting in death. 18 U.S.C. 844(f); 18 U.S.C. 844(i). The only difference between the two subsections is grammatical: 18 U.S.C. 844(f) sets forth its three separate offenses in separately numbered sub-subsections, whereas 18 U.S.C. 844(i) sets forth its three separate offenses in one long sentence through the use of semicolons. Defendant Paul does not believe such a grammatical distinction can affect the substantive nature of the offenses created by these statutes. And if it cannot, then a violation of the first clause of 18 U.S.C. 844(i) cannot be found to be a Federal crime of terrorism, because 18 U.S.C. 2332b(g)(5)(B)(i) does not include 18 U.S.C. 844(f)(1) in its list of such crimes; on the contrary, it renders only violations of 18 U.S.C. 844(f)(2) and (3) [i.e. arsons of government property resulting in death or personal injury] such crimes. If Congress did not consider the arson of government property that only resulted in property damage to be a Federal crimes of terrorism, 6 surely it did not intend the arson of private property that only resulted in property
Other defendants are expected to address this issue in greater detail. Defendant Paul is therefore not further elaborating on it in this Memorandum. Rather, he hereby adopts and relies on an the arguments presented by one or more of his co-defendants. Page 16 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
damage to be such an offense. That result defies not only logic, but fundamental principles of proportionality. It also defies the consistently expressed Congressional concept of what constitutes terrorist activity. Although no statutory definition of domestic terrorism existed in 1997, 18 U.S.C. 2332b(a)(1) limited the prosecution of persons committing Acts of terrorism transcending national boundaries to those whose conduct: (A) kills, kidnaps, maims, commits an assault resulting in serious bodily injury, or assaults with a dangerous weapon any person within the United States; or creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the United States or by attempting or conspiring to destroy or damage any structure, conveyance, or other real or personal property within the United States...
(B)
Similarly, the then-existing definition of international terrorism and the subsequentlyenacted definition of domestic terrorism clearly demonstrate that Congress viewed risk of death or personal injury, not merely property destruction, as an essential aspect of terrorism. The then-existing definition of international terrorism was set out in 18 U.S.C. 2331(1) and provided, in relevant part: (1) the term international terrorism means activities that (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed withing the jurisdiction of the United States or any State.
The definition of domestic terrorism subsequently adopted as part of The PATRIOT Act in 2001 is set out in 18 U.S.C. 2331(5) and provides, in relevant part: // Page 17 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
(5)
the term domestic terrorism means activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State.
See also 22 U.S.C. 2656f(d)(2) (1987), which defined terrorism in connection with the Department of States obligation to provide Congress with annual country reports on terrorism;7 United States v. Afshari, 426 F.3d 1150, 1154 (9th Cir. 2005) [addressing terrorist activity rendering an alien inadmissible under 8 U.S.C. 1182]; James v. United States, __ U.S. __, 127 S. Ct. 1586, 1598 (2007) [upholding attempted burglary as predicate offense under the Armed Career Criminal Act by noting that an unenumerated crime [that] otherwise involv[es] conduct that presents a serious potential risk of physical injury to another is not so indefinite...Similar formulations have been used in other federal and state criminal statutes. See, e.g., 18 U.S.C. 2332b(a)(1)(B) [defining terrorist act as conduct that, among other things, creates a substantial risk of serious bodily injury to any other person.] Given Congress uniform approach of limiting activity deemed to involve terrorism to conduct causing or risking serious bodily injury or death to other persons, and its explicit exemption from the definition of Federal crime of terrorism an arson of government property that only results in property damage, the Court must find that a violation of that portion of 18 U.S.C. 844(i) that involves only damage to property // // The term terrorism means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents. Pub. L. 100-204, 1987 HR 1777 (December 22, 1987). Page 18 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
cannot constitute a Federal crime of terrorism or provide a basis for the sentencing enhancement of U.S.S.G. 3A1.4.8 3. A violation of 18 U.S.C. 844(i) not alleged to have involved conduct transcending national boundaries is not a Federal crime of terrorism.
U.S.S.G. 3A1.4 (2000) applies only to a Federal crimes of terrorism as defined in 18 U.S.C. 2332b(g), a subsection of the statute that addresses Acts of Terrorism Transcending National Boundaries. 9 18 U.S.C. 2332b(g) defines its terms as used in this section. 18 U.S.C. 2332b(g). This placement, coupled with a rigorous and thorough examination of the text, context, and legislative history of 18 U.S.C. 2332b requires the conclusion that an offense is a Federal crime of terrorism for U.S.S.G. 3A1.4 purposes only if it involved conduct transcending national boundaries. That is the conclusion reached in United States v. Salim, 287 F. Supp.2d 250, 331-354 (S.D.N.Y. 2003), an opinion that exhaustively reconstructs and construes these provisions. Although the Fifth Circuit Court of Appeals disagrees with Salim,10 the depth of analysis underlying Salim should be found persuasive by this Court. Because the Information in this case makes no claim that the defendants conduct //
Other defendants are expected to address this issue in greater detail. Defendant Paul is therefore not further elaborating on it in this Memorandum. Rather, he hereby adopts and relies on an the arguments presented by one or more of his co-defendants. Defined as conduct occurring outside of the United States in addition to the conduct occurring in the United States. 18 U.S.C. 2332b(g)(1). See United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005); see also United States v. Garey, 383 F. Supp.2d 1374, 1378 (M. D. Ga. 2005). Page 19 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
10
transcended national boundaries, the Court should conclude that the U.S.S.G. 3A1.4 does not apply.11 4. 18 U.S.C. 371 is not a Federal crime of terrorism.
The substantive offenses included in 18 U.S.C. 2332b(g)(5)(B)(i) are listed in numerical order as they appear in the Criminal Code, from 18 U.S.C. 32 (relating to destruction of aircraft or aircraft facilities) through 18 U.S.C. 2340A (relating to torture). 18 U.S.C. 371 (Conspiracy to commit offense or to defraud United States) is not included in this list. Consequently, the federal conspiracy statute itself is not a
Other defendants are expected to address this issue in greater detail. Defendant Paul is therefore not further elaborating on it in this Memorandum. Rather, he hereby adopts and relies on an the arguments presented by his co-defendants. In addition, however, he notes that this statute is a product of the AEDPA [Pub. L. 104-132, 1996, Title VII, 702(a)], which is entitled Acts of terrorism transcending national boundaries, [emphasis added], and that Section 730 of the Act [Pub. L. 104-132, 1996, Title VII, 730], which is responsible for the current version of U.S.S.G. 3A1.4, set out the following directive to the Sentencing Commission: DIRECTIONS TO SENTENCING COMMISSION The United States Sentencing Commission shall forthwith, in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that section had not expired, amend the sentencing guidelines so that the chapter 3 adjustment relating to international terrorism only applies to Federal crimes of terrorism, as defined in section 2332b(g) of title 18, United States Code [emphasis added]. To the extent U.S.S.G. 3A1.4 purports to apply to offenses unrelated to international terrorism, therefore, it conflicts with this Congressional directive and is unenforceable. [S]tatutes take precedence over sentencing guidelines where the two conflict. United States v. Rockwell, 984 F.2d 1112, 1114 n. 2 (10th Cir.), cert. den., 508 U.S. 966, 113 S. Ct. 2945, 124 L. Ed. 2d 693 (1993). See also United States v. Mintz, 928 F. Supp. 1063, 1065 (D. Kan. 1996). See also United States v. Smith, 354 F.3d 171 (2d Cir. 2003). Page 20 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
11
Federal crime of terrorism which can support the Terrorism Guideline of U.S.S.G. 3A1.4. See United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004). 5. A violation of 18 U.S.C. 371 alleged to involve the commission of an offense that is not alleged to be a Federal crime of terrorism is not intended to promote a Federal crime of terrorism and therefore not a basis for applying U.S.S.G. 3A1.4 (2000).
Because 18 U.S.C. 371 is not itself a Federal crime of terrorism, M r. Paul is subject to sentence enhancement under U.S.S.G. 3A1.4 for his conspiracy conviction only if the Court can find that it involved, or was intended to promote, a Federal crime of terrorism. All of the cases that have addressed this aspect of the guideline have held that it can be applied only if the evidence establishes that the purpose or intent of the defendants substantive offense of conviction or relevant conduct was to promote a Federal crime of terrorism as defined by 2332b(g)(5)(B). United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005); United States v. Hale, 448 F.3d 971, 988 (7th Cir. 2006) [the district court found that the purpose of his soliciting Evola was to promote a Federal crime of terrorism-the murder of a federal officer or employee; emphasis in the original]; United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001); United States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004) [Under a plain reading, the phrase intended to promote means that if a goal or purpose was to bring or help bring into being a crime listed in 18 U.S.C. 2332b(g)(5)(B), the terrorism enhancement applies.]. To meet this burden, the district court must...identify which enumerated Federal crime of terrorism the defendant intended to promote, satisfy the elements of 18 U.S.C. 2332b(g)(5)(A), and support its conclusions by the requisite // Page 21 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
burden of proof12 with facts from the record. United States v. Graham, 275 F.3d at 517. 6. An upward departure may not be imposed under U.S.S.G. 3A1.4 (2000) for an offense committed in 1997 the motive for which was to intimidate or coerce a civilian population, not influence or affect the conduct of government.
For the reasons set forth above [supra at 13-15], U.S.S.G. 3A1.4 does not apply to the arson of the Cavel W est slaughterhouse [or the conspiracy related to it] because it was not calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. In addition, because the Application Note that authorizes an upward departure for conduct intended to intimidate or coerce a civilian population, rather than to influence or affect the conduct of government [set forth above at 14] was not adopted until 2002, the constitutional and guideline prohibitions against ex post facto application of amendments that disadvantage the offender preclude the imposition of an upward departure for an offense committed in 1997 on the basis of U.S.S.G. 3A1.4. The guideline prohibition against the ex post facto application of amendments appears in U.S.S.G. 1B1.11(b)(1), which provides: If the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.
Unlike the Sixth Circuit, as noted above, in the Ninth Circuit, where a sentencing factor would have an extremely disproportionate effect on the sentence, the government may have to satisfy a clear and convincing standard of proof. United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006); United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005). Page 22 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
12
Application Note 2 to this Guideline provides: Under subsection (b)(1), the last date of the offense of conviction is the controlling date for ex post facto purposes. For example, if the offense of conviction (i.e., the conduct charged in the count of the indictment or information of which the defendant was convicted) was determined by the court to have been committed between October 15, 1991 and October 28, 1991, the date of October 28, 1991 is the controlling date for ex post facto purposes. This is true even if the defendants conduct relevant to the determination of the guideline range under 1B1.3 (Relevant Conduct) included an act that occurred on November 2, 1991 (after a revised Guideline M anual took effect) [bold emphasis added]. Under this guideline, U.S.S.G. 3A1.4 cannot be applied to impose an upward departure for Mr. Pauls July 21, 1997 participation in Cavel West arson. United States v. Zagari, 111 F.3d 307, 324 -325 (2d Cir. 1997). The same conclusion is compelled by the ex post facto Clause of the Constitution. The ex post facto clause prohibits the retrospective imposition of punishment if it disadvantages the offender, such as when a sentencing provision has been increased between the time the offense is committed and the time of sentencing. See Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351, 360 (1987). United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir. 1994); United States v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996). For both statutory and constitutional reasons, therefore, Mr. Paul is not subject to the upward departure of Application Note 4 to U.S.S.G. 3A1.4. // // // // Page 23 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
D.
The Purely Factual Reasons U.S.S.G. 3A1.4 is inapplicable to Mr. Pauls Offenses 1. The destruction of the Cavel West slaughterhouse was not a Federal crime of terrorism.
Count 2 of the Information is based on the July, 1997 arson of the horse slaughterhouse operated by Cavel West, Inc. in Redmond, Oregon. This count alleges only that the defendants unlawfully and willfully caused and aided...the malicious damaging and destroying, by means of fire and an explosive, of a building and other real and personal property used in interstate commerce and in activities affecting interstate commerce... The Information, factual basis of Mr. Pauls guilty plea, and discovery confirm that the property that was the target of his conduct was the private property of an entity engaged in activity affecting interstate commerce, that its destruction was carried out only after confirming that no persons [or horses] were in the facility, and that it goal was to influence and affect the conduct of commerce, private business, and others in the civilian population, by putting an end to private profiteering in horsemeat, not the conduct of government. Supra at 4-8. That the Cavel West arson was, in fact, intended only to damage property cannot be disputed. Not only does the Information so allege; discovery confirms that this has always been the official view of the offense. According to discovery [Cavel West Discovery at 00065, et seq.] immediately upon receiving a report of the fire in the early morning hours of July 21, 1997, the Redmond Police Department secured the investigative and forensic assistance of the Oregon State Police. All reports prepared by that agency categorized this offense as Arson II. Under Oregon law in 1997, Arson in // Page 24 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
the second degree was a Class C felony [carrying a maximum term of incarceration of five years] defined by ORS 164.315 as follows: (1) A person commits the crime of arson in the second degree if, by starting a fire or causing an explosion, the person intentionally damages any building of another that is not protected property.13
Under Oregon law in 1997, the defining difference between Arson in the second degree and the Class A felony of Arson in the first degree [carrying a maximum term of incarceration of 20 years and, when presenting a threat of serious physical injury, a mandatory minimum sentence of 70 months under ORS 137.707(4)(b)(A) (Ballot Measure 11)] was risk of personal injury or death. Arson in the first degree [ORS 164.325] was then defined as follows: (1) A person commits the crime of arson in the first degree if, by starting a fire or causing an explosion, the person intentionally damages:
ORS 164.305(2) defined Protected property as any structure, place, or thing customarily occupied by people, including public buildings as defined by ORS 479.010 and forestland, as defined by ORS 477.001. ORS 479.010(i) defined public buildings as a building in which persons congregate for civic, political, educational, religious, social or recreational purposes, including among others, state buildings, courthouses, schools, colleges, libraries, museums, exhibit buildings, lecture halls, churches, assembly halls, lodge rooms, dance halls, theaters, skating rinks, bath houses, armories, recreation piers, grandstands and bleachers in exhibition parks or fields, and jails. ORS 477.001(9) defined forestland as woodland, brushland, timberland, grazing land or clearing that, during any time of the year, contains enough forest growth, slashing or vegetation to constitute, in the judgment of the forester, a fire hazard, regardless of how the land is zoned or taxed. ORS 164.305(3) defined Property of another as property in which anyone other than the actor has a legal or equitable interest that the actor has no right to defeat or impair, even though the actor may also have such an interest in the property. Page 25 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
13
(a) (b)
Protected property of another; Any property, whether the property of the person or the property of another person, and such act recklessly places another person in danger of physical injury or protected property of another in danger of damage; or Any property, whether the property of the person or the property of another person, and recklessly causes serious physical injury to a firefighter or peace officer acting in the line of duty relating to the fire.
(c)
The investigative categorization of the Cavel W est fire as a second, not first, degree arson establishes that this arson did not involve a structure, place, or thing customarily occupied by people, place another person or protected property of another in danger, or cause serious physical injury to a firefighter or peace officer acting in the line of duty. This official recognition requires the conclusion that the Cavel West arson was not an offense dangerous to human life, violated only the first clause of 18 U.S.C. 844(i), and therefore cannot be treated as a Federal crime of terrorism. The sine qua non of an act of terrorism is causing and intending to cause, or creating and intending to create risk of, death or injury to human life, not property. The manner in which Mr. Pauls offense did not create risk of, death or injury to human life. The precautions taken before the midnight destruction of the privately owned Cavel West slaughterhouse were intended to and succeeded in avoiding such risk. Moreover, the objective and motivation of this act of destruction was to put a stop, at least at one location, to the inhumane treatment of horses and the commercial trafficking in horsemeat by a private corporation. There is not a shred of evidence in // Page 26 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
discovery or elsewhere that suggests it was calculated to influence or affect the conduct of government...or to retaliate against government conduct. For each of these reasons, the arson destruction of the Cavel West horse slaughterhouse as not an act of terrorism that may subject Mr. Paul to the sentencing enhancement of U.S.S.G. 3A1.4. The Court must therefore refuse to impose the 12 level Offense Level increase and the shift to Criminal History Category VI that flows from that provision of the Sentencing Guidelines. For the same reasons, it must also refuse to consider imposing an upward departure on the basis of Application Note 4 to U.S.S.G. 3A1.4 adopted by the Sentencing Commission in 2002. 2. The conspiracy in which M r. Paul participated was not a Federal crime of terrorism.
Count 1 of the Information describes a multi-faceted conspiracy. However, Mr. Paul is alleged to have participated in only one of its objects: the July, 1997 arson of the horse slaughterhouse operated by Cavel West, Inc. in Redmond, Oregon. Information at 8-10. Mr. Pauls role in the conspiracy [as described in the Information and his plea petition; supra at 4-8], the nature of the substantive offense that was its object [as described in the Information and his plea petition; supra at 6, 8], and its purpose [as described in the Information, his plea petition, and discovery; supra at 4-8], establish that the conspiracy of which Mr. Paul was a part was not a Federal crime of terrorism. Attachment 1 to Mr. Pauls plea petition, which describes the conspiracy, confirms that while some of [its participants] intended to damage or destroy, attempt to damage or destroy, or did damage or destroy property of the United States or an Page 27 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
energy facility, others intended to damage or destroy, attempt to damage or destroy, or did damage or destroy property of entities engaged in activity affecting interstate commerce. Supra at 6-7. It further confirms that while the purpose of some of the conspirators was to influence and affect the conduct of government, the purpose of other conspirators was to influence and affect the conduct of commerce, private business, and others in the civilian population. Supra at 7. Both the Information and the factual basis of Mr. Pauls guilty plea confirm that the property that was the target of his conduct was the private property of an entity engaged in activity affecting interstate commerce and that his purpose was to influence and affect the conduct of commerce, private business, and others in the civilian population. Supra at 4-5, 6-8. For the reasons discussed above, supra at 13-20, the arson destruction of the Cavel West horse slaughterhouse was not a Federal crime of terrorism. For the reasons discussed above, supra at 20-22, the conspiracy to destroy the Cavel West horse slaughterhouse was not a Federal crime of terrorism. The sentencing enhancement of U.S.S.G. 3A1.4 therefore may not be imposed for the conspiracy to destroy the Cavel West slaughterhouse either directly as itself a Federal crime of terrorism or indirectly as a felony...intended to promote a Federal crime of terrorism. Mr. Paul could be subject to the sentencing enhancement of U.S.S.G. 3A1.4 therefore only if the Court were find that an event recounted in Count 1 of the Information in which Mr. Paul did not participate constituted a Federal Crime of terrorism and that the guidelines permit the objects, acts and purposes of others to be attributed to someone not participating in them. Mr. Paul does not know whether any of the events recounted in Count 1 in which he did not participate constituted a Federal Page 28 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
crime of terrorism. He does know, however, that under the principles of responsibility of the guidelines, those events cannot be attributed to him. The conspiracy count of the Information therefore cannot subject him to the sentencing enhancement of U.S.S.G. 3A1.4. Under U.S.S.G. 1B1.3, a defendants offense level is determined on the basis of: (1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. [Emphasis added]. Application Note 2 to this guideline provides: In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a defendant is accountable for the conduct (acts and omissions) of others that was both: (i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity. Because a count may be worded broadly and include the conduct of many participants over a period of time, the scope of the criminal activity jointly undertaken by the defendant (the jointly undertaken criminal activity) is not necessarily the same as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the same for every participant. In order to determine the defendant's accountability for the conduct of others under subsection (a)(1)(B), the court must first determine the scope of the criminal activity the particular defendant agreed to undertake (i.e., the scope of the specific conduct and objectives embraced by the defendants agreement). The conduct of others that was both in furtherance of, and reasonably foreseeable in connection with, the criminal activity jointly Page 29 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
undertaken by the defendant is relevant conduct under this provision. The conduct of others that was not in furtherance of the criminal activity jointly undertaken by the defendant, or was not reasonably foreseeable in connection with that criminal activity, is not relevant conduct under this provision. Cases interpreting this application note make clear that it requires a searching and individualized inquiry into the circumstances surrounding each defendants involvement in the conspiracy...to ensure that the defendants sentence accurately reflects his or her role. United States. v. Mannino, 212 F.3d 835, 840-841 (3d Cir. 2000), quoting United States v. Collado, 975 F.2d 985, 991-92 (3d Cir. 1992). As the Ninth Circuit held in United States v. Riley, 335 F.3d 919 (9th Cir. 2003): The scope of the jointly undertaken activity is not necessarily the same as the scope of the entire conspiracy. U.S.S.G. 1B1.3 , Application Note 2. Each conspirator is responsible only for the activities that fell within the scope of his particular agreement with the conspirators, and reasonably foreseeable behavior in furtherance of that particular agreement. See United States v. Whitecotton, 142 F.3d 1194, 1198-99 (9th Cir.1998). W hen determining a conspirators relevant conduct under this section the court must first determine the scope of the criminal activity the particular defendant agreed to jointly undertake. Id. at 1197. United States v. Riley, 335 F.3d at 928. The Court has further clarified recently that: [F]or sentencings governed by the revised guidelines which became effective November 1, 1992, district courts must make two findings in order to attribute the conduct of others to a defendant under 1B1.3(a)(1)(B): that the conduct was in furtherance of jointly undertaken criminal activity, and that it was reasonably foreseeable in connection with that activity. United States v. Ortiz, 362 F.3d 1274, 1275 (9th Cir. 2004). Hence, in a drug conspiracy case, each conspirator is to be judged on the basis of the quantity of drugs which he reasonably foresaw or which fell within the scope of his particular agreement with the conspirators, rather than on the distribution made by Page 30 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
the entire conspiracy. United States v. Petty, 982 F.2d 1374, 1376 (9th Cir. 1993); United States v. Gutierrez-Hernandez, 94 F.3d 582, 585 (9th Cir. 1996). In a fraud case, each defendant is responsible only for the loss resulting from the actions of coconspirators was (1) in furtherance of the jointly-undertaken activity; (2) within the scope of the defendants agreement; and (3) reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake. United States v. Collado, 975 F.2d 985, 995 (3d Cir. 1992) (quoting U.S.S.G. 1B1.3, application note 1); United States v. Evans, 155 F.3d 245, 254 (3d Cir. 1998). In a bank robbery case, the getaway driver is not responsible for an express threat of death made by his co-defendant inside the bank. United States v. Zelaya, 114 F.3d 869, 871 (9th Cir. 1997); conversely, participating in an armed robbery in which getaway vehicles are part of the plan is insufficient as a matter of law, without more, to allow a district court to impose this enhancement on [mere passengers in the getaway car] not directly committing the acts amounting to reckless endangerment. United States v. Young, 33 F.3d 31, 33 (9th Cir. 1994); United States v. Franklin, 321 F.3d 1231, 1237 (9th Cir. 2003). Moreover: [T]here is no presumption of foreseeability, and the burden of proving foreseeability remains on the government. United States v. Castaneda, 9 F.3d 761, 767 (9th Cir.1993) (as amended) (citations omitted); see also United States v. Torres, 81 F.3d 900, 903 (9th Cir.1996) (holding that the governments burden of proving factors enhancing a sentence is by a preponderance of the evidence). Further, it is clear that the district courts factual determination of foreseeability must be supported by the particular facts and circumstances of the underlying [offense]. United States v. Zelaya, 114 F.3d 869, 872 (9th Cir. 1997). United States v. Sarkisian, 197 F.3d 966, 990 (9th Cir. 1999). // Page 31 DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] R A N S O M B L A C K M A N LLP 1001 S.W. Fifth Avenue, Suite 1400
Applying these principles to the facts of this case, the only event described in the conspiracy count for which Mr. Paul may be held accountable is the Cavel West arson and the only purpose that can be attributed to him is the purpose underlying that offense. For the reasons set forth above, that offense and its purpose do not meet the criteria of a Federal crime of terrorism. Therefore, Mr. Paul is not subject to the 12 level offense level or the six level criminal history category increase provided by U.S.S.G. 3A1.4 or to the upward departure subsequently authorized by the adoption of Application Note 4 in 2002 for his role in the conspiracy alleged in Count 1. CONCLUSION For each of these reasons, the Court is respectfully urged to find that M r. Paul is not subject to the Terrorism Enhancement of U.S.S.G. 3A1.4. DATED this 4th day of May, 2007. Respectfully submitted, RANSOM BLACKMAN LLP
/s/ MARC D. BLACKMAN MARC D. BLACKMAN OSB No. 730338 [503] 228-0487 Of Attorneys for Defendant Paul
Page 32 -
CERTIFICATE OF SERVICE I hereby certify that I served the foregoing DEFENDANT PAULS MEMORANDUM REGARDING APPLICATION OF TERRORISM GUIDELINE [U.S.S.G. 3A1.4] on the following attorneys by e-mail transmission a full and correct copy thereof on the 4th day of May, 2007. John C. Ray, Esq. Mr. Kirk A. Engdall, Esq. Assistant United States Attorneys United States Attorneys Office 405 East 8th Street Eugene, OR 97401 Stephen F. Peifer, Esq. Assistant United States Attorney United States Attorneys Office 1000 S.W. Third Avenue Portland, OR 97204-2902 Of Attorneys for the United States Craig E. Weinerman Office of the Federal Public Defender 151 W. 7th Suite 510 Eugene, OR 97401 Of Attorneys for Defendant Chelsea Gerlach Lee D. Foreman Haddon, Morgan, M ueller, Jordan, Mackey & Foreman, P.C. 150 E. 10th Avenue Denver, CO 80203 Shaun S. McCrea McCrea, PC 1147 High Street Eugene, OR 97401 Of Attorneys for Defendant Kendall Tankersley ldforeman@hmflaw.com craig_weinerman@fd.org john.ray@usdoj.gov kirk.engdall@usdoj.gov
steve.peifer@usdoj.gov
smccrea@callatg.com
Page
1 -
CERTIFICATE OF SERVICE
Amanda E. Lee Jeffery P. Robinson Schroeter, Goldmark & Bender 810 Third Avenue Suite 500 Seattle, WA 98104 Kelly R. Beckley Beckley Law Firm P.O. Box 11098 Eugene, OR 97440-3298 Of Attorneys for Defendant Daniel McGowan Richard L. Fredericks 750 Lawrence Street Suite 2 Eugene, OR 97401 Terri Wood Law Office of Terri Wood, PC 730 Van Buren Street Eugene, OR 97402
lee@sgb-law.com robinson@sgb-law.com
kbeckley@beckley-law.com
rlfred@comcast.net
twood@callatg.com
Of Attorneys for Defendant Stanislas Gregory Meyerhoff John Joseph Kolego John J. Kolego, P.C. 804 Pearl Street Eugene, OR 97401 johnkolego@yahoo.com
Of Attorneys for Defendant Suzanne Nicole Savoie Daniel L. Feiner 1030 N.W. 12th Avenue Unit 5 Portland, OR 97209 Of Attorneys for Defendant Darren Thurston // // // Page 2 CERTIFICATE OF SERVICE
dan@danfeiner.com
Marc P. Friedman Marc P. Friedman, Attorney at Law 245 West 13th Avenue P.O. Box 11167 Eugene, OR 97440 Of Attorneys for Defendant Kevin Tubbs John E. Storkel John E. Storkel, PC 1415 Liberty Street, S.E. Salem, OR 97302 Of Attorneys for Defendant Nathan Fraser Block William R. Sharp 1342 High Street, 2nd Floor Eugene, OR 97401 Of Attorneys for Defendant Joyanna L. Zacher Lynn Purdue Sr. United States Probation Officer 405 East 8th Street Eugene, OR 97401 Nichole Houchins United States Pretrial Services Office 310 West Sixth, Room 106 Medford, OR 97501
mpfriedma@yahoo.com
oceanpoet@comcast.net
sharp3223@comcast.net
Lynn_Purdue@orp.uscourts.gov
Nichole_Houchins@ord.uscourts.gov
RANSOM BLACKMAN LLP
/s/ MARC D. BLACKMAN MARC D. BLACKMAN OSB No. 730338 [503] 228-0487 Of Attorneys for Defendant Paul
Page
3 -
CERTIFICATE OF SERVICE

Guide

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Guide

Enviado por

Direitos autorais:

Formatos disponíveis

MARC D. BLACKMAN, OSB No. 730338 E-mail: marc@ransomblackman.com RANSOM BLACKMAN LLP 1400 Congress Center 1001 S.W.

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) JONATHAN CHRISTOPHER MARK PAUL, ) ) Defendant. ) )

LEGAL AND FACTUAL SETTING A. The Allegations

The Evidence Concerning the Nature and Purpose of M r. Pauls Conduct

As well as the conspiracy count, per U.S.S.G. 2X1.1(b)(2).

RANSOM BLACKMAN LLP

Você também pode gostar