Daniel L.

Feiner, OSB# 81221 Attorney at Law 1221 SW 10th, Unit 1103 Portland, OR 97205 (503) 228-2822 Attorney for Darren Todd Thurston

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA, Plaintiff, vs. DARREN TODD THURSTON, Defendant

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CR 06-60069-AA MEMORANDUM OPPOSING APPLICATION OF THE TERRORISM ENHANCEMENT

On May 29, 2007 Darren Thurston will be sentenced on charges of Conspiracy and Arson of a Government Building. The government intends to seek application of the terrorism enhancement set forth in U.S.S.G. 3A1.4. The request should be denied as the provision is not applicable to Mr. Thurstons offenses of conviction. FACTS Animal rights activists attempted to release wild horses and destroy structures at the United States Bureau of Land Management corral in Litchfield, California on October 15, 2001. The horse release was not successful, but a pole barn and hay were destroyed by fire. On January 20, 2006, Mr. Thurston and ten others were named in a 65-count indictment charging,

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among other offenses, conspiracy to commit arson. Mr. Thurstons involvement in the Litchfield incident was one of the overt acts alleged. Charges related to Litchfield were also brought in the Northern District of California. On April 20, 2006 a grand jury charged Mr. Thurston and three co-defendants with conspiracy, arson and weapons offenses. As part of a negotiated resolution, Mr. Thurston entered a guilty plea in Eugene on July 20, 2006 to an information (CR 06-60069-AA) alleging the crime of Conspiracy to Commit Arson and Destruction of an Energy Facility, a violation of 18 U.S.C. 371. The final overt act alleged in the information was the October 30, 2001 release of a communiqu concerning the Litchfield arson. Mr. Thurston also agreed to plead guilty to a substantive arson count from the California indictment. The case was transferred to Oregon for resolution (CR 06-60120-AA). On January 8, 2007, Mr. Thurston entered a guilty plea to count two, Arson of a Government Building, a violation of 18 U.S.C. 844(f)(1). The government has agreed to recommend at sentencing that Mr. Thurston serve 37 months in prison. It is also seeking application of the terrorism enhancement. Mr. Thurston opposes the latter request. THE LAW The terrorism enhancement applies to felony offenses involving or intending to promote a federal crime of terrorism. Application Note 1of U.S.S.G. 3A1.4 adopts the definition of federal crime of terrorism set forth in 18 U.S.C. 2332b(g)(5). The statute, first enacted in April 1996, lists numerous offenses that constitute federal crimes of terrorism if calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct. A violation of 18 U.S.C. 844(f), Arson of a Government Building, was an enumerated offense in the original version of the statute. The conspiracy statute, 18 U.S.C. 371, has never been on the list of federal crimes of terrorism. The 9th Circuit has not considered whether a conspiracy conviction can warrant

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application of the enhancement. A number of circuits have held it can if the conspirator intended to promote a listed offense. See United States v. Graham, 275 F.3d 490 (6th Cir. 2001); United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004); and United States v. Arnaout, 431 F.3d 994 (7th Cir. 2005). Prior to April 1996, 18 U.S.C. 844(f) was an undivided provision. As part of the same legislation that created 18 U.S.C. 2332b(g)(5), the statute was divided into three subsections, (f)(1); (f)(2) and (f)(3), each setting penalties based upon the consequences of the crime. The USA Patriot Act was signed on October 26, 2001. Among its provisions was an amendment to the list of federal crimes of terrorism contained in 18 U.S.C. 2332b(g)(5). H.R. 3162, 808. The reference to 844(f) was deleted and replaced by 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death). Id. Also amended was 18 U.S.C. 2332b(f). To the existing provision the Attorney General shall have primary investigative responsibility for all Federal Crimes of terrorism the following language was added, and any violation of section844(f)(1) Id. The Patriot Act amendments remain in the current version of the statute. DISCUSSION 1. Mr. Thurstons violation of 18 U.S.C. 844(f)(1) is not a federal crime of terrorism The statute criminalizing arson of government buildings, 18 U.S.C. 844(f), was listed, without reference to its subsections, in the original version 18 U.S.C. 2332b(g)(5). The Patriot Act amendment, however, removed 844(f)(1) from the list of terrorism offenses. It also added it to the list of crimes other than terrorism offenses for which the Attorney General has primary investigative responsibility. 18 U.S.C. 2332b(f). The intent of Congress could not be more evident: a violation of 844(f)(1) is not a crime of terrorism and conviction does not subject a defendant to the terrorism enhancement. Imprecision in Mr. Thurstons plea agreement, however, appears to have prompted the government and presentence report writer to conclude the enhancement remains available. Like each of the defendants in these cases, Mr. Thurston stipulated in his plea agreement that guidelines calculations should be derived from the United States Sentencing Guidelines Manual Page 3 MEMORANDUM OPPOSING APPLICATION OF THE TERRORISM ENHANCEMENT

with effective date of November 1, 2000. Plea letter of July 19, 2006, paragraph 6. No changes relevant to Mr. Thurston have been made to the terrorism enhancement provision since that manual was current. The definition of a federal crime of terrorism in 18 U.S.C. 2332b(g)(5) was, however, amended by the Patriot Act. The government and presentence report writer apparently believe that since the Litchfield fire, which occurred on October 15, 2001, predated the amendment by 11 days, the former version of the statute is controlling and all subsections of 18 U.S.C. 844(f) should be considered federal crimes of terrorism. That conclusion is wrong and should be rejected. The intent of both the guidelines and criminal code is that sentencing provisions in effect on the date of sentencing be employed unless ex post facto prohibitions require otherwise. USSG 1B1.11(a); 18 U.S.C. 3553(a)(4)(a)(ii). The general rule is that a defendant should be sentenced under the law in effect at the time of sentencing. United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998). Although no ex post facto concerns existed, Mr. Thurston accepted the governments plea offer which included an agreement to use the 2000 version of the guidelines for guidelines calculations. He doesnt dispute that. However, there was no reference in the document to 18 U.S.C. 2332b and no suggestion that the pre-October 21, 2001 version of the statute be employed. Plea agreements are contractual in nature and are generally construed using ordinary rules of contract interpretation. United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006). Although in some circumstances the analogy to contract law is imperfect, one tenet the Ninth Circuit has consistently applied to plea agreements is that of contra proferentem, the principle that ambiguities in contracts are to be construed unfavorably to the drafter. Id. (internal quotation marks omitted). The government drafted Mr. Thurstons plea agreement. It represents the full agreement of the parties. There are no other promises or agreements, express or implied. Plea letter, Paragraph 18. Had the government intended a statute amended more than 5 years ago now be used, it should have included that in the terms of the accord. It didnt.

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In the context of plea agreements, the government is usually the drafter and must ordinarily bear the responsibility for any lack of clarity. Ambiguities are therefore construed in favor of the defendant. Transfiguracion, at 1228 (citation and internal quotation marks omitted). The version of 18 U.S.C. 2332b current at the time of sentencing must be utilized. It unambiguously provides that a violation of 18 U.S.C. 844(f)(1) is not a federal crime of terrorism. 2. The Sentencing Guidelines as applied to Mr. Thurstons case compel use of 18 U.S.C. 2332b(g)(5) as amended by the Patriot Act Mr. Thurston entered guilty pleas to two offenses, a substantive count of Arson of a Government Building (the Litchfield facility) and Conspiracy to Commit Arson and Destruction of an Energy Facility. The arson indictment alleges the Litchfield fire occurred on October 15, 2001. The conspiracy information identifies the time period of the crime as beginning in October 1996 and continuing through October 2001. The last identified overt act occurred on October 30, 2001. Conspiracy is a continuing offense. It is presumed to continue until there is affirmative evidence of abandonment, withdrawal, disavowal or defeat of the object of the conspiracy. United States v. Castro, 972 F.2d 1107, 1112 (9th Cir. 1992). The conspiracy Mr. Thurston pled guilty to continued at least through the end of October, 2001. When an ongoing conspiracy spans an amendment to the sentencing guidelines, the amended version of the guidelines must be applied, even if it raises ex post facto issues. Id. Consequently, even if for purposes of argument the Patriot Act changes to 18 U.S.C. 2332b(f) and (g)(5) are considered amendments to U.S.S.G. 3A1.4, the resulting new version of the manual is the appropriate one to apply to the conspiracy conviction because the offense extended beyond the date of the amendment. As a result, it would also have to be applied to Mr. Thurstons 18 U.S.C. 844(f)(1) conviction because under the guidelines if a defendant is convicted of two offenses, the first committed before and the second after a revision to the guidelines, the revised edition of the manual must be applied to both offenses. U.S.S.G. 1B1.11(b)(3).

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Application of that provision, a policy statement, was considered in United States v. Ortland, 109 F.3d 539, 546 (9th Cir. 1997). The court declined to apply it there because of ex post facto issues but indicated that generally Commission policy statements are binding on us. Mr. Thurston has raised no ex post facto issues. The guidelines mandate the Patriot Act amendments to 18 U.S.C. 2332b be applied to each of his convictions. 3. Mr. Thurstons conspiratorial liability does not extend beyond the Litchfield arson Mr. Thurston pled guilty to an information alleging a single conspiracy with multiple objectives: (1) Arson of a Government Building; (2) Arson of a Building, Vehicle or Property Used in Interstate Commerce; and (3) Destruction of an Energy Facility. Admission of the conspiracy offense, however, does not constitute an admission to each of the objectives. Agreeing to participate in any one of them is sufficient to warrant conviction. United States v. Smith, 891 F. 2d 703, 712-713 (9th Cir. 1989), modified, 906 F.2d 385 (9th Cir. 1990); Braverman v. United States, 317 U.S. 49, 53-54 (1942). Mr. Thurstons conspiratorial agreement is described in the admission statement of his plea petition. He acknowledged participation only in the Litchfield offense. The government has not offered any evidence suggesting he had a broader involvement. Since he wasnt a member of the conspiracy when the earlier overt acts took place, Mr. Thurston has no Pinkerton liability for them. Pinkerton v. United States, 328 U.S. 640, 645 (1946); United States v. Alvarez-Valenzuela, 231 F.3d 1198, 1202-1203 (9th Cir. 2000). The sentencing guidelines are consistent. A defendants relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct U.S.S.G. 1B1.3, Application Note 2. Application of the terrorism enhancement to Mr. Thurston cannot, therefore, be based upon the actions of any of his co-conspirators. 4. The terrorism enhancement does not apply to a Conspiracy conviction under 18 U.S.C. 371. The federal conspiracy statute, 18 U.S.C. 371, has never been included in the list of offenses that may constitute a federal crime of terrorism. In the Patriot Act amendments to 18

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U.S.C. 2332b(g)(5) Congress considered the list and made additions and deletions to it. Had the lawmakers intended conspiracy to be on it, they would have included it. The Ninth Circuit has never held that a conspiracy conviction can constitute a federal crime of terrorism. As mentioned above, appellate courts in other circuits have, after concluding that a defendants actions promoted a federal crime of terrorism. This court should not accept that premise. However, even if it were to, that avenue of liability is foreclosed in Mr. Thurstons case because the only offense he agreed to either commit or promote was a violation of 18 U.S.C. 844(f)(1), which is not a federal crime of terrorism. CONCLUSION Neither offense Mr. Thurston was convicted of constitutes a federal crime of terrorism. Consequently, the terrorism enhancement is not applicable to him. RESPECTFULLY SUBMITTED this 4th day of May, 2007

/s/ Daniel Feiner ___________________________ Daniel Feiner, OSB# 81221 Attorney for Darren Todd Thurston

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