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United States v. Allen

United States District Court, D. Kansas

January 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CURTIS WAYNE ALLEN, et al., Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Defendants Curtis Allen, Gavin Wright, and Patrick Stein (collectively, “Defendants”) were convicted by a jury of conspiracy to use a weapon of mass destruction, conspiracy to interfere with civil rights, and Wright was convicted on an additional count of obstruction of justice. Defendants filed a number of objections to the United States Probation Office's Second Amended Presentence Investigation Report (“PSR”). All three Defendants objected to the PSR's base offense level calculation, to the application of a terrorism enhancement, and to a special condition of post-release supervision. Allen and Stein objected to the application of a hate crime enhancement. Stein objected to an enhancement for being an organizer of the conspiracy. And Wright objected to an enhancement for obstruction of justice. Defendants also filed a motion to exclude the Government's submission of approximately 20 victim impact statement videos. Finally, Allen filed a motion to strike a Reply brief filed by the Government, and Stein filed a motion to join Allen's request.

         For the following reasons, Defendants' objections to the base offense level calculation are overruled. Allen and Stein's objections to the hate crime enhancement are overruled. Defendants' objections to the terrorism enhancement are overruled. Stein's objection to the organizer enhancement is sustained. Wright's objection to the obstruction of justice enhancement is overruled. Defendants' objections to the special conditions of supervision are sustained. Additionally, Defendants' Objection and Motion to Exclude “Victim” Impact Statements (Doc. 457.) is denied. Finally Defendant Curtis Wayne Allen's Motion to Strike Government's Reply (Doc. 475) is denied on the merits, and Stein's Motion to Join (Doc. 476) Allen's Motion is denied as moot.

         I. Factual and Procedural Background

         In October 2016, following an extensive investigation, the Federal Bureau of Investigation (“FBI”) arrested Defendants for their involvement in a plot to detonate multiple explosives at an apartment complex ("Mary Street Apartments”) in Garden City, Kansas. The FBI's investigation began in late 2015, with the assistance of an undercover informant, Dan Day. Day had been invited to participate in a militia, and while attending the militia's meetings became concerned with the direction of the group's plans. Day took those concerns to the local FBI office. The FBI instructed Day to continue meeting with the militia and to monitor what the FBI considered a possible threat to public safety. In February 2016, Day met Stein at one of the militia's meetings. Stein expressed strong anti-Muslim views to Day, referring to Somali-Muslims as “cockroaches” and to himself as the “exterminator.” Eventually, Stein recruited Day into a separate militia, the Kansas Security Force (“KSF”), where Day was introduced to Allen and Wright. Over the next several months, Defendants and other members of the KSF frequently discussed targeting members of the Somali-Muslim community with violence, including the residents of the Mary Street Apartments.

         In June 2016, shortly after the mass shooting at the Pulse nightclub in Orlando, Florida, Stein initiated a KSF meeting. Prior to the meeting, Stein stated that following the nightclub shooting a “switch flipped” and he had gone into “organization mode” planning an attack against Muslims. Stein also expressed frustration at the government's response to the attack. Stein stated he was “sick and tired of seeing our own f*cking people get slaughtered by our own f*cking government” and that he was “more convinced than ever” that the government and law enforcement would do nothing to curtail Muslims from entering the United States, and that the group would need to take matters into their own hands. At the meeting-which Day captured for the FBI on an audio-recording device-Stein blamed the federal government for what he perceived to be the Muslim problem. Stein stated, “[t]he f*ckin' cockroaches in this country have got to go. Period. . . . They are the f*cking problem in this country right now. They are the threat that we have in the country right now. . . . They're bringing them in by the f*ckin' plane load every god damn day. That god d*mn n*gger in the f*ckin' White House is making sure of it.”

         The group held two more recruitment meetings with members of KSF in July 2016. Stein called these meetings together, Allen participated at both meetings, and Wright participated only in the second meeting. The purpose of these meetings was to determine which KSF members would be willing to participate in an attack against Muslims, and to brainstorm possible targets and methods of attack. Allen told the other members of KSF that the group was planning a preemptive strike to kill Muslims, and it was likely the participants would go to prison for life for their actions. None of the other KSF members ultimately decided to join Defendants.

         Defendants and Day then began meeting at Wright's business, G&G Mobile Home Sales (“G&G”), in Liberal, Kansas. Over the course of several meetings, the group continued to brainstorm possible targets and methods of attack. In addition to targeting Somali-Muslims directly, the group considered targeting landlords who rented to Muslims, churches that were sympathetic to Somali-Muslims, and local government officials that the group blamed for bringing Muslims into the area. Eventually, the group decided to detonate multiple explosives at the Mary Street Apartments; to inflict maximum casualties, the group planned to detonate the bombs during the apartment's mosque's prayer time. Defendants also decided they would manufacture their own explosives at G&G, and each member of the conspiracy was charged with acquiring materials to be used for that purpose.

         While the group continued to meet and plan, Allen suggested the group draft a manifesto explaining the group's reasons for the attack. Defendants discussed the contents of the manifesto on multiple occasions. Allen stated that the manifesto should “trigger [] like-minded people across the nation to f*cking stand up and start doing the same thing we're doing . . . [against] Muslims and [the] Government.” Stein stated that the manifesto should warn the government to stop bringing Muslims into the country and to reinstate its national borders. Defendants discussed the most effective time and method of distributing the manifesto to reach the largest possible audience. Allen agreed to begin drafting the manifesto.

         Now that Defendants had selected a target and were attempting to manufacture explosives, the FBI had Day introduce the group to an FBI undercover employee (“UCE”), who was posing as a black-market weapons dealer who could sell explosives to the group. Day introduced the idea to Defendants during a meeting at G&G on September 2, 2016. The group decided they would try to acquire several materials from the UCE, including electronic blasting caps, C-4, and other smaller explosives.

         About two weeks later, Wright and Allen informed the group that they had successfully manufactured and tested a small homemade explosive. The group considered canceling the meeting with the UCE and completing their plan to bomb the Mary Street Apartments with homemade explosives. Ultimately, the group decided to pursue both options. Stein and Day would meet with the UCE to determine the feasibility of acquiring explosives from the UCE, and Allen and Wright would continue to manufacture explosives at G&G. Stein and Day met with the UCE on September 25, and they were scheduled to meet again on October 12.

         The day before Stein and Day's second meeting with the UCE, Allen's girlfriend, Lula Harris, reported Allen to the local police for domestic violence. Harris also informed the police that she had witnessed Allen and Wright manufacturing explosives at G&G. The police stopped and detained Allen and Wright as they were leaving G&G; Allen was taken into custody but Wright was released. The police then secured G&G in anticipation of executing a search warrant on the premises.

         The following day, Wright went to the police station to find out why he had been denied access to his business. While there, Wright agreed to interview with agents from the FBI and the Kansas Bureau of Investigation. During this interview, Wright denied any knowledge that Allen was manufacturing explosives at G&G, or that any explosives were located at G&G. Wright also stated that he was not a member of any militia, that Allen had never invited Wright to a KSF meeting, and that Wright had provided the FBI with everything he knew about Allen.

         That same day, Stein and Day met with the UCE as planned, and the parties agreed that Stein would provide the UCE with 300 pounds of fertilizer and cash, and in exchange the UCE would construct an explosive for Defendants. When Stein attempted to deliver the fertilizer to the UCE two days later, the FBI arrested him.

         The FBI executed search warrants on G&G, Stein and Wright's home, Stein's vehicle, and two commercial storage units. In addition to finding a variety of incriminating evidence, including materials and instructions for making explosives, the FBI found an unfinished draft of Defendants' manifesto at G&G. Although each Defendant participated in discussing the manifesto's message, all evidence indicated that Allen composed this draft. The unfinished manifesto was addressed to “the U.S. govt and [] the American people.” The manifesto stated that “with this document we are going to attempt a forced wake up call. American people, you have to wake up while there still might be time to stop our govt from totally selling this country out.” The manifesto then listed a series of grievances against the government, including “not enforcing our borders” and “illegally bringing in Muslims by the thousands.” The document concluded by urging government officials and private citizens to act to save the country and warning that their families and businesses would be in danger if they continued to “sell out this country.”

         After a lengthy trial, a jury convicted all three Defendants of conspiracy to use a weapon of mass destruction and conspiracy to interfere with their intended victims' civil rights. Wright was also convicted of obstruction of justice for lying to the FBI during his voluntary interview. At this Court's instruction, the United States Probation Office prepared the PSR, [1] to which Defendants have filed a number of objections. Additionally, the Government has submitted approximately 20 short videos from residents of the Mary Street Apartments giving victim impact statements for the Court's consideration in sentencing, and Defendants have filed a Motion to exclude those videos.

         On November 19, 2018, the Court conducted a hearing on Defendants' objections to the PSR and Motion to exclude the victim impact statements submitted by the Government. During argument on Defendants' objection to a terrorism enhancement, the Government cited caselaw not contained in any of their briefs. The Court ordered the Government to file their additional authorities with the Court, and provided Defendants a week to file responsive briefing. After the Government filed its authorities and Defendants filed their response, the Government filed a Reply brief with more than 500 pages of attached materials. Allen and Stein filed motions requesting that the Court strike the Government's Reply.

         II. Discussion

         A. Base Offense Level

         Defendants dispute the PSR's conclusion that U.S.S.G. § 2K1.4 is the correct guideline in determining Defendants' base offense level. To determine which guideline to apply, the Court undergoes a three-step process: “(1) identify the charge from the indictment and jury instructions, (2) find the substantive offense in the guidelines' statutory index, and (3) find the applicable guideline range.”[2] Often times the statutory index references more than one guideline for a particular statute, and in those circumstances the Court must “ ‘use the guideline most appropriate for the offense conduct charged in the count of which the defendant was convicted.' ”[3] To determine which guideline is the most appropriate, the Court considers “the language in the guideline itself, as well as the ‘interpretative and explanatory commentary to the guideline' provided by the Sentencing Commission.”[4] The Guidelines' commentary “is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”[5] Indeed, failing to follow the commentary “could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal.”[6]The guideline's commentary is inconsistent with its text when “ ‘following one will result in violating the dictates of the other.' ”[7]

         Here, Defendants were convicted of conspiracy to use a weapon of mass destruction in violation of 18 U.S.C. § 2332a. Section 2332a(c)(2)(A)-(D) provides four definitions for the term “weapon of mass destruction.”[8] Subsection (A) defines weapon of mass destruction to include “destructive devices”-i.e., conventional weapons.[9] Subsections (B)-(D) address chemical, biological, and nuclear weapons. Defendants were convicted of using a “destructive device” pursuant to subsection (A).

         The statutory index provides three guidelines applicable to convictions under § 2332a. Those guidelines are § 2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), § 2K1.4 (Arson; Property Damage by Use of Explosives), and. § 2M6.1 (Unlawful Activity Involving Nuclear Material, Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other Weapons of Mass. Destruction; Attempt or Conspiracy). All parties agree that § 2A6.1 is inapplicable. The PSR determined that § 2M6.1 does not apply to Defendants because § 2M6.1's commentary specifically excludes destructive devices from its definition of “Weapon of mass destruction.”[10] Thus, by process of elimination, the PSR stated that § 2K1.4 applied.

         Defendants argue that the commentary to § 2M6.1 should be disregarded because it conflicts with the text of the guideline. To support this contention, Defendants point to § 2M6.1's heading, which, after listing nuclear, biological, and chemical weapons, includes the phrase “or other weapons of mass destruction.” Defendants argue that “other weapons of mass destruction” must include “destructive devices, ” and that limiting § 2M6.1 to crimes involving the unlawful use of nuclear, chemical, and biological substances is contrary to a plain reading of the guideline.

         This is a novel issue in the Tenth Circuit, and there is little caselaw from other circuits addressing the matter. Defendants cite no cases where a court has held that § 2M6.1 applies to a crime involving a “destructive device” as defined by 18 U.S.C. § 2332a(c)(2)(A). The Government relies primarily on an unpublished opinion from the United States District Court for the Northern District of New York, in which the court concluded that § 2M6.1 is inapplicable to crimes involving “destructive devices, ” but did not address the alleged conflict between the text and commentary that Defendants raise here.[11]

         Based on a plain reading of the guideline, the Court concludes that § 2M6.1's text and commentary are not in conflict. Section 2M6.1's heading mirrors with specificity the nuclear, biological, and chemical materials covered in § 2332a(c)(2)(B), (C), and (D). But the heading does not extend the same treatment to subsection (A). If the intent was for § 2M6.1 to apply to all convictions under § 2332a, it would be unusual to explicitly include nuclear, biological, and chemical materials, but omit “destructive devices” from the heading. Indeed, the most obvious conclusion is that this omission was purposeful.

         More importantly, absent an irreconcilable clash between the commentary and the text, the commentary is authoritative, and it would be error for the Court to set it aside. Section 2M6.1 does not define or explain the meaning of “other weapons of mass destruction.” Certainly nothing in the text requires the guideline to apply to all “destructive devices.” The heading's undefined phrase “other weapons of mass destruction” is simply insufficient to create an irreconcilable clash between the text and commentary. Accordingly, the Court will follow the commentary and hold that § 2M6.1 is inapplicable here. The correct guideline is therefore § 2K1.4.

         As the PSR correctly stated, Defendants intended to cause death or serious bodily injury to their victims; so pursuant to § 2K1.4(c)(1), this guideline is cross-referenced to § 2A1.5. See U.S.S.G. § 2K1.4(c)(1) (“If death resulted, or the offense was intended to cause death or serious bodily injury, apply the most analogous guideline from Chapter Two, Part A (Offenses Against the Person) if the resulting offense level is great than that determined above.”). The most analogous guideline is U.S.S.G. § 2A1.5 (Conspiracy or Solicitation to Commit Murder), which carries a Base Offense Level of 33. Defendants' base offense level was correctly calculated at 33, and Defendants' objection is overruled.[12]

         B. Hate Crime Enhancement

         Defendants Allen and Stein object to the PSR's application of a hate crime enhancement.[13] There is some confusion in the PSR about who is responsible for deciding if the hate crime enhancement applies. The guidelines state:

If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person, increase by 3 levels.[14]

         The PSR stated that if the Court determines beyond a reasonable doubt that the Defendants selected their victims because of their race, religion, or national origin, the hate crime enhancement would apply. This conclusion, however, is contrary to the guideline, which allows the Court to make this determination only in cases involving a guilty plea or a plea of no contest. But in cases where criminal defendants put the government to its burden of proof, it is the prerogative of “the finder of fact at trial” to make this finding. The Court therefore has no role in deciding whether the Government carried its burden to prove Defendants committed a hate crime. That determination is instead left to the wisdom of the jury.

         It is undisputed that when the jury convicted Defendants on Count 2, it found beyond a reasonable doubt that Defendants targeted their victims because of their race, religion, or national origin.[15] The Jury made no such specific finding with regards to Count 1. Allen and Stein argue that taking an enhancement that arises from Count 2 and applying it to an offense level calculation based on Count 1 is improper.[16] The Court disagrees. Count 1 and Count 2 are grouped together under § 3D1.2 because both counts “involve[ed] substantially the same harm.”[17] This means that both counts necessarily involved the same victims, and both counts involved the same criminal act or multiple criminal acts based on a common criminal objective.[18] Defendants' common criminal objective was to detonate multiple bombs at an apartment complex, and this plan formed the basis for Defendants' convictions under Count 1 and Count 2. In fact, it is the similarity between the two counts that allows them to be grouped together for sentencing purposes.[19]

         Because the underlying facts in these two counts are so intertwined-in particular, both counts involved targeting the same victims-when the jury found beyond a reasonable doubt that Defendants selected their victims because of their race, religion, or national origin in Count 2, that finding is sufficient to conclude that the jury also found beyond a reasonable doubt that Defendants targeted their victims based on their protected status in Count 1. Thus, the Court concludes that the PSR properly increased Defendants offense level by three levels under § 3A1.1(a), and this objection is overruled.

         C. Terrorism Enhancement

         Defendants object to the PSR's application of an enhancement pursuant to § 3A1.4 (Terrorism). This enhancement is significant-Defendants' offense level would be raised 12 levels, and their criminal history would automatically be increased to Category VI.[20] The terrorism enhancement applies “[i]f the offense is a felony that involved, or was intended to promote, a federal crime of terrorism. . . .”[21] Section § 3A1.4's commentary states that a “federal crime of terrorism” has the same meaning given the term in 18 U.S.C. § 2332b(g)(5), [22] which limits a “federal crime of terrorism” to offenses that are “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.”[23] Defendants argue that their conspiracy was not calculated to influence the government or to retaliate against government conduct. Rather, the conspiracy was directed at, and intended to influence, a civilian population. The Government argues in response that targeting a civilian population is not mutually exclusive with intending to influence or retaliate against the government.

         It is surely uncontroversial that a crime can target civilians but be intended to provoke a reaction from the government or be committed to retaliate against government conduct. And the Government has provided ample authority-albeit from jurisdictions outside the Tenth Circuit- supporting the contention that the terrorism enhancement can apply to crimes targeting only civilians.[24] This does not, however, adequately resolve whether the enhancement applies here. To apply this enhancement the Court must find by a preponderance of the evidence that Defendants intended to influence or affect the conduct of the government, or intended to retaliate against government conduct.[25]

         Defendants' objective with the conspiracy cannot be neatly distilled into a single purpose. Although bringing harm to the Muslim residents of the Mary Street Apartments was unquestionably a core goal of the conspiracy, the evidence shows that Defendants had bigger plans than simply killing local Muslims. Defendants sought to inspire like-minded citizens to engage in similar violent conduct nationwide, to discourage local landlords from leasing to Muslims, and to coerce government officials to change their conduct toward Muslims.

         Throughout the conspiracy Stein expressed his frustration with the government and its role in bringing Muslims into the United States.[26] Both Allen and Stein suggested targeting local government officials and their families as a way of curtailing the presence of local Muslims.[27] Then, when Defendants' final plan to bomb the Mary Street Apartments started to take shape, Defendants decided they should release a manifesto to ensure the purpose of their attack was clear and to encourage like-minded people to take similar actions against Muslims and the government. Although the evidence at trial showed that Allen drafted the manifesto, all three Defendants participated in crafting its message. Additionally, all three Defendants discussed how to release the manifesto in conjunction with the bombing to ensure it reached the most people.

         The Government presented the jury with an unfinished draft of the manifesto recovered at G&G. The manifesto was addressed to the United States government and the American people. It provided a list of grievances against the government-including “not enforcing our borders” and “illegally bringing in Muslims by the thousands”-and stated multiple times that the purpose of the document was to force people to “wake up” and take a stand against the tyranny of the government. The document concluded by urging government officials and private citizens to act to save the country and warning that their families and businesses would be in danger if they continued to “sell out this country.”

         Additionally, when Stein called a meeting with certain members of KSF to discuss ways in which they could retaliate against Muslims for the mass shooting at the Pulse nightclub, Stein's frustration was not just with the shooter, but also with the government for its response to the shooting. Stein stated that he was “sick and tired of seeing our own f*cking people get slaughtered by our own f*cking government” and that Muslims were being brought into the country “by the plane load every day.” The Orlando shooting and the government's response to it was the catalyst event that caused Stein to flip a switch and go into “organization mode, ” brainstorming ways to take matters into his own hands.

         This is just some of the evidence demonstrating that Defendants' conspiracy was intended, at least in part, to influence, affect, or retaliate against the government. But, as the Court has already stated, the evidence suggests that Defendants had more than one purpose or goal with the conspiracy, including influencing the decisions of private citizens. The issue then becomes to what extent or degree influencing, affecting, or retaliating against the government needs to be Defendants' purpose for the terrorism enhancement to apply. Defendants ask the Court to adopt a standard that for the terrorism enhancement to apply, influencing the government must be Defendants' “primary intent” or “dominant purpose.”

         The degree to which a defendant must intend his crime to influence the government for the terrorism enhancement to apply is a novel issue in the Tenth Circuit. Indeed, only the Sixth Circuit has provided any guidance on this issue, stating that it is not necessary that influencing the government be Defendants' “ultimate or sole aim.”[28] Since both the Government and Defendants rely heavily on the Sixth Circuit's Wright decision, the Court will give that opinion careful consideration.

         In Wright, four defendants involved with the Occupy Cleveland movement were convicted of, among other charges, conspiracy to use a weapon of mass destruction.[29] At the planning stage, the defendants discussed a variety of possible actions, including bombing government buildings, bombing a bridge, bombing cargo ships, and assaulting police officers at a political rally.[30] The defendants asserted that their goal was to influence corporate behavior or disrupt the lives of the “one percent, ” and that they did not target the government specifically.[31] Ultimately, the defendants settled on detonating explosives on a bridge that was part of the Ohio state highway system.[32]

         The Sixth Circuit held that the district court did not err in applying the § 3A1.4 terrorism enhancement to three of the four defendants.[33] In upholding the district court's application of the terrorism enhancement, the Sixth Circuit relied on the following facts. Early in the planning stage the defendants planned to violently target law enforcement officers during a protest in Chicago; the defendants discussed targeting government buildings with explosives; the defendants considered their plan to be a terrorist act, or at least anticipated that it would be seen as such; the defendants discussed that bombing a bridge would likely prompt the government to take heightened security measures; and one defendant commented that this endeavor would be a “nice learning experience” for future actions.[34] “Viewing this evidence cumulatively” the Sixth Circuit held that the defendants “were aware of the consequences of their acts and chose to act in ways that would bring about the consequences, even if they had other goals in mind, such as antagonizing the ‘one percent.' ”[35]

         Notably, the Sixth Circuit took into consideration the defendants' discussions planning the attack, even discussions relating to plans they ultimately decided not to pursue. For example, the Sixth Circuit relied on the defendants' conversations about assaulting police officers at a political rally in Illinois. Not only did the defendants in Wright not follow through with this plan, it was nothing like the offense they were convicted of: conspiracy to use a weapon of mass destruction in Ohio. Nevertheless, the Sixth Circuit found these discussions-as well as other conversations about abandoned plans to target government facilities-relevant to whether the defendants' offense was calculated to influence of affect government conduct.[36]

         Here, the Court concludes that Defendants' conspiracy had a split purpose: in part to influence the government and in part to influence private citizens. If the terrorism enhancement only applied if influencing or retaliating against the government was a defendant's sole intent or principal purpose, the Court would sustain Defendants' objection, as the Court agrees that influencing the government was not Defendants' sole concern. But the Court is not convinced this is the correct standard. Indeed, there is nothing in the guideline, statutory definition, or caselaw supporting the Defendants' suggestion that influencing the government must be the primary intent or dominant purpose.[37] Concluding otherwise reads into the guideline something that is not there.[38]

         Furthermore, the Court disagrees with Defendants' factual characterization that influencing or retaliating against the government was not a significant purpose of the conspiracy. The Defendants initially considered assailing several government targets, including federal and local government officials. The Sixth Circuit's Wright decision informs this Court that such preliminary planning is relevant in determining the intent of the conspiracy, even if such plans were subsequently abandoned. Additionally, Defendants agreed to draft and disseminate a manifesto to be released in conjunction with the bombing. Defendants discussed that the purpose of the manifesto would be to inspire like-minded people to commit similar crimes against Muslims and the government; they also discussed that the manifesto should demand that the government change its policies on Muslim immigration and border security. Although Allen was the most vehement and outspoken about directing the manifesto toward the government, and he was the one who drafted the manifesto, Stein and Wright were both present for, and participated in, these discussions.

         Finally, even if Stein and Wright gave no input into the manifesto and Allen was the only Defendant who intended to influence or retaliate against the government--a conclusion the Court rejects-the terrorism enhancement would still apply to all three Defendants. Allen intended for this conspiracy to influence or retaliate against the government, and he made that purpose abundantly clear to Stein and Wright. In a conspiracy, one Defendant is responsible for “ ‘all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal activity.' ”[39] It was more than foreseeable to Stein and Wright that Allen intended to influence government conduct by releasing the anti-government manifesto in conjunction with the bombing. Indeed, both Stein and Wright encouraged (and contributed to) Allen's plan. Stein and Wright are accountable for their co-conspirator's reasonably foreseeable actions.

         As a final matter, Defendants highlight that prior to the trial, the Government provided a bill of particulars at Defendants' request. Defendants argue that the bill of particulars demonstrated that the Government did not consider Defendants' actions to be a federal crime of terrorism. This argument does not ultimately persuade the Court. Defendants asked the Government for a bill of particulars on Count 1 because the original indictment included “essentially a bare bones recitation of the [Use of weapons of mass destruction] statute.”[40]Specifically, Defendants asked the Government to identify which “people or property within the United States” were the targets of Defendants' conspiracy. Defendants also took issue with the original indictment's recitation of all four elements under § 2332a(a)(2)(A)-(B), [41] and requested that the Government identify which of the four subsections it would be relying on. The Government provided Defendants with answers to each of their questions. The Court disagrees with Defendants that the bill of particulars demonstrated the Government never intended for Count 1 to be considered a federal crime of terrorism.

         In sum, Defendants offense was calculated, at least in part, to influence, affect, or retaliate against government conduct. The Court concludes this is sufficient to trigger the terrorism enhancement, and Defendants' objection is thereby overruled.

         D. Organizer Enhancement

         Defendant Stein objects to the PSR's application of a two-level enhancement for his role as an organizer in the conspiracy.[42] The Probation Office concluded that Stein was an organizer because he recruited other militia members to participate in the bombing and because he was Defendants' primary representative in dealing with the FBI's undercover agent. The Tenth Circuit has held that “a defendant may be deemed an organizer under § 3B1.1 for ‘devising a criminal scheme, providing the wherewithal to accomplish the criminal objective, and coordinating and overseeing the implementation of the conspiracy.' ...


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