[Ppnews] District of Oregon Eco-sabotage “Terrorism Enhancement” Hearings

Political Prisoner News ppnews at freedomarchives.org
Fri May 18 10:39:04 EDT 2007

Report on District of Oregon Eco-sabotage 
“Terrorism Enhancement” Hearings, 5/15/07
By the Civil Rights Outreach Committee

In the new federal courthouse in Eugene, 
arguments were heard on issues regarding the 
government’s attempt to apply terrorism 
enhancements to the District of Oregon 
eco-sabotage defendants. Whatever is decided on 
the basis of this hearing, individual defendants 
may still make their own arguments on the issue 
at their own upcoming sentencing hearing.  No 
court rulings were made at the conclusion of this hearing.

Assistant U.S. Attorney Stephen Peifer presented 
opening arguments for the government’s position 
that the defendants deserve the terrorism 
enhancement under §3A1.4 of the federal 
sentencing guidelines. He argued that the 
purposes of the conspiracy were to coerce or 
influence government, commerce, private business 
and the populace, and that the sabotage was 
dangerous to human life. He claimed that, despite 
claims of lofty goals, that “this is a classic 
case of terrorism.” Peifer added that, “it was 
pure luck that no one was injured.” He stated 
that the crimes targeted people, not just 
property. Under the arguments made by defendants, 
he alleged, arsons by the Ku Klux Klan against 
churches or by white supremacists against 
synagogues would not constitute terrorism. Peifer 
launched into a list of people who had been 
sentenced under the terrorism enhancement 
although no person was injured—people who he 
claims are comparable to the eco-sabotage defendants.

Peifer then addressed what he called the “doomed 
to the dungeon” argument of defense attorneys, in 
which it is claimed that those convicted under 
the enhancement will end up at the 
maximum-security United States Penitentiary at 
Terre Haute, IN, or a like facility. He listed 
the whereabouts of the aforementioned arsonists 
who qualified for the enhancement, who for the 
most part ended up in medium-security institutions.

Another defense argument he addressed was that 
the government was not seeking terrorism 
enhancements against Washington federal 
cooperating defendants Jen Kolar and Lacey 
Phillabaum. He claimed that Kolar is indeed 
facing the terrorism enhancement for her role in 
the Oregon crime against the Cavel West horse 
slaughterhouse, and that Phillabaum will most likely have it applied as well.
“This is not a political prosecution,” Peifer 
stated, addressing concerns that the terrorism 
enhancements were politically motivated. He 
stated that Oregon federal prosecutors had not 
been directed by Washington, DC to seek the terrorism enhancement.

He addressed defense arguments concerning the 
timeline of amendments to sentencing guideline 
§3A1.4 and related statutes, in relation to the 
timeline of the crimes themselves. He stated that 
the sentencing guideline was revised in 1996 to 
include any “federal crime of terrorism.” A 
“federal crime of terrorism,” defined under 18 
USC 2332b(g)(5), has two components. It is (1) 
“calculated to influence or affect the conduct of 
government by intimidation or coercion, or to 
retaliate against government conduct” and (2) 
falls under one of the criminal acts listed in 
the Code section. In other words, this section 
refers to (1) intent and (2) the criminal act 
itself. He stated that “government” in this 
situation means more than just the federal 
government, and can even apply to municipal 
authorities. He then discussed each individual 
crime, arguing how it could be seen as an attempt 
to influence or retaliate against the 
government—making some dubious assertions, such 
as that the Vail arson must have been an attempt 
to retaliate against the government, as that ski 
resort, even though a privately owned facility, 
is located on public land. He also stated that 
the Romania Chevrolet arson was retaliation 
against the Lane County Circuit Court for trying 
eco-saboteurs Jeff “Free” Luers and Craig “Critter” Marshall.

Peifer concluded with a statement that if the 
terrorism enhancement applies to one defendant 
for one act, it must apply for all of his or her acts.

Kevin Tubbs’ attorney Marc Friedman responded 
first for the defense, “This is a political 
case.” The court needs to consider how the 
enhancement will impact the defendants. 
Regardless of what the judge decides, the Bureau 
of Prisons makes its own decisions. He stated 
that the government has the burden of providing 
“clear and convincing evidence” (the standard of 
proof) that each individual defendant committed a 
federal crime of terrorism. He stated that not 
all defendants are in the same situation—the 
length and depth of their involvements differ. 
The court must understand that these are not the 
types of people the terrorism enhancement was 
intended for. It is becoming clear that the 
government is using defendants’ statements at 
debriefing against them, which is not admissible. 
He stated that these were “property crimes, plain 
and simple” and not terrorist acts. He criticized 
the government idea of a “mixed motive”—that 
sabotage could be intended to preserve lynx 
habitat but also be retaliation against the 
government, for example—and that the crimes are 
simply not within the domain of the terrorism enhancement.

Amanda Lee, counsel for Daniel McGowan, cited 
case law that gave judges the discretion to 
depart from sentencing guidelines that are no 
longer mandatory. The terrorism enhancement 
automatically takes someone with no prior 
criminal history up to a criminal history of 
level six, the highest level possible and usually 
reflecting significant prior criminal 
convictions. She argued that such an arbitrary 
value does not reflect any true history of the 
defendant, instead constituting a non-jury 
finding of fact, forbidden under the Booker 
Supreme Court case. McGowan’s attorneys have 
challenged the constitutionality of the entire 
3A1.4 sentencing provision, and if ruled in their 
favor, would strike this enhancement from the law 
books altogether.  Aiken asked a clarifying 
question about whether the plea agreement terms 
waived their ability to make this argument, to 
which Lee responded that, despite the waiver of a 
jury trial by defendants, no legal arguments on 
the constitutionality of the terrorism 
enhancement had been waived. She proceeded to 
describe the government’s position in “one word: 
overreaching.” She said that the government 
argues that the crimes were focused on people, 
and in the same breath argues that they focused on government—which is it?

Lee then persuasively described that the 
government’s comparison of eco-saboteurs and the 
KKK—who murdered four young girls in a church 
attack, Medgar Evers, and three civil rights 
workers, as well as campaigns of physical 
violence and threats—as reprehensible and appalling.

Lee asserted that the argument is about what 
terrorism means in these troubled times, not just numbers.

Lee stated that the government’s attitude towards 
prime informant Jake Ferguson speaks volumes. 
Ferguson is responsible for 12 of the arsons, but 
the government knows that he is not a terrorist, 
he roams free. It is a double standard, 
therefore, to call the current defendants 
terrorists. She said, “I am a human being like 
everyone else in this courtroom, and I believe 
that people should be punished for their crimes. 
I sincerely hope that the government is not 
making the same type of deals with real terrorists.”

She said that USP Terre Haute was created for 
“low risk terrorists”—“Isn’t this an oxymoron?” 
Lee recognizes that not every defendant will end 
up in Terre Haute, but stated that they could 
serve their time in comparable conditions. Lee 
argued that deprivation of visitation and contact 
with humanity makes transition outside prison 
much less successful. Aiken then interjected that 
she didn’t need to hear arguments on that 
subject, saying, “Our recommendations [to the 
Bureau of Prisons] fall on deaf ears.”

Lee invoked past moments of political panic such 
as the internment of Japanese Americans during 
WWII and the fact that the courts allowed such 
injustices to continue because of “fear, 
prejudice, and lack of political leadership.” She 
concluded, “Now there are terrorists everywhere. 
The person sitting next to you could be a 
terrorist. We implore you to uphold both the 
letter and the spirit of the law. We ask you to 
tell the government that the definition of 
terrorism cannot be stretched so far.”

Craig Weinerman, attorney for Chelsea Gerlach, 
followed. He stated that the government has 
politicized these cases, and that political 
direction comes not from Eugene or Portland, but 
from DC. He pointed to the press conference held 
in December of 2005 by Attorney General Alberto 
Gonzales to demonstrate the involvement of the 
Department of Justice in Washington, DC.  The 
government asserts that they only need two prove 
two things—were the government or interstate 
commerce targeted, and the nature of the 
defendants’ motives. Weinerman submitted that the 
government must prove other things, such as 
intent of harm or danger to human life. Judge 
Aiken then stated that the government must be 
prepared to offer proof of motivation at the individual sentencing hearings.

Joyanna Zacher’s lawyer, Bill Sharp, discussed 
the legislative history of the enhancement and 
reviewed congressional hearings on terrorism in 
1995, 1996 and 2001, which all led to 
reformulations of the law. These incidents 
clarify what is meant by terrorism. In 1995, the 
PanAm bombing above Scotland, gas attacks in the 
Tokyo subway and the 1993 first World Trade 
Center bombing were frequently cited. In 1996, 
the Oklahoma City bombing was most frequently 
discussed. In 2001, the “9/11” attacks were a 
focus. He urged the court to consider the context 
of the times when laws defining terrorism were 
amended. Even though 2001 sentencing guidelines 
may not apply, even what was said that year adds 
to our understanding of what was meant all along. 
Terrorism equals “death to people,” or at least the intention of causing this.

Terri Wood, counsel for Stanislas Meyerhoff, 
called an expert witness, Dr. Zelda Ziegler, to 
testify about the statistics, chemistry and 
physics of the arsons. She was not being paid for 
her appearance but was Meyerhoff’s community 
college instructor in Bend. A written statistical 
analysis by Dr. Ziegler of the likelihood of no 
injuries taking place over the course of 1,200 
ALF or ELF actions, was submitted to the court. 
Her results indicated that it was not, and could 
not be just luck that caused no injuries or 
death, but that statistically, caution and 
planning was the reason that no harm 
occurred.  In order to refute the government 
allegations that the devices used were explosive 
or firebombs, Dr. Ziegler conducted scientific 
studies regarding the devices.  She narrated a 
video demonstrating the non-explosive nature of 
ELF devices which was played to the court. 
Finally, she discussed the extremely low chance 
of propane tanks exploding when exposed to heat 
due to innovations in design. The National Fire 
Protection agency required upgrades to tanks for 
this purpose. After Dr. Ziegler’s strong 
testimony, Wood contrasted the government 
treatment of Meyerhoff, to the state’s treatment 
of a white supremacist tried in the District of 
Oregon by Judge Hogan who had attacked a 
synagogue and advocated for racial assassination 
cells. The terrorism enhancement was not sought in that case.

Nathan Block’s lawyer John Storkel reminded the 
court that sentencing guidelines from 2001 and 
beyond cannot be used in relation to his client, 
as this would constitute an ex post facto application of such guidelines.

Suzanne Savoie’s attorney John Kolego joined in 
the arguments of all other attorneys.Shaun 
McCrea, attorney for Kendall Tankersley, adopted 
the arguments made by other attorneys, but also 
claimed that even if the enhancement could apply 
generally to the defendants, it can’t do so to 
Tankersley herself. Furthermore, even if it could, it shouldn’t.

Darren Thurston’s attorney, Dan Feiner, claimed, 
in contrast to other defense lawyers, that 
Patriot Act definitions apply to his client. This 
is because Thurston’s final act within the 
conspiracy—sending a communiqué regarding the 
Litchfield Horse Corral arson—took place days 
after the Patriot Act became law. Under Patriot 
Act definitions, the crimes Thurston participated 
in are not on the predicate list of acts to which 
the terrorism enhancement applies.

Marc Blackman, attorney for Jonathan Paul, stated 
that individual determinations must be made for 
each act and each defendant. He asked the court 
to rule on whether the offenses pled to are 
predicate offenses for application of the 
enhancement. He stated that today property damage 
alone does not warrant a terrorism enhancement, 
and that this was the intent of the law all 
along. He also said that the criminal code 
section relating to damage to private property is 
analogous to the section on government property, 
which matters because today the government 
property code section is not a predicate offense 
for the terrorism enhancement. He raised concerns 
that real evidence be presented regarding 
motivation, and that debriefs with defendants 
cannot be used as evidence against them for 
application of the enhancement. He argued against 
vicarious responsibility and “group guilt”.

Peiffer clarified that the government would 
provide evidence of motive for each defendant. He 
went on to say that prohibition against using 
debriefing statements as evidence, was void for 
the non-cooperating defendants who did not name 
others. Blackman countered this by citing the 
relevant law, stating that the mere admission of 
acting in concert with others unnamed would suffice for protection.

Judge Aiken stated that she does not take all 
these issues lightly and that she will issue her 
guidance on these issues in writing by Monday or 
Tuesday. She also responded to Blackman’s concern 
that the order of sentencing could disallow 
supporting arguments from codefendants’ counsel, 
as once a ruling is made concerning one 
defendant’s role in a particular sabotage, it 
could apply to other defendants involved in the 
act, without their counsel having the opportunity 
to argue. She mentioned that it might be 
necessary for lawyers to attend sentencing 
hearings for more than just their own particular defendant.

Phew!  5 plus hours of court!

<http://www.supportdaniel.org/>Daniel McGowan is 
an environmental and social justice activist. He 
was charged in federal court on many counts of 
arson, property destruction and conspiracy, all 
relating to two incidents in Oregon in 2001. 
Until recently, Daniel was offered two choices by 
the government: cooperate by informing on other 
people, or go to trial and face life in prison. 
His only real option was to plead not guilty 
until he could reach a resolution of the case 
that permitted him to honor his principles. As a 
result of months of litigation and negotiation, 
Daniel was able to admit to his role in these two 
incidents, while not implicating or identifying 
any other people who might have been involved. 
The government will seek a sentence of eight 
years, while Daniel's lawyers will seek a 
sentence of no more than 63 months at his June 4th sentencing hearing.

Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

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