Appeals from the United States District Court for the Eastern District of Wisconsin. No. 04 CR 235-William C. Griesbach, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER, POSNER, and SYKES,Circuit Judges.
Steven Parr was convicted of threatening to use a weapon of mass destruction against a federal government building and was sentenced to 10 years in prison. See 18 U.S.C. § 2332a(a)(3) & (a). On appeal, Parr argues that he was convicted for conduct protected by the First Amendment and that the district court abused its discretion in allowing the jury to hear evidence of his extensive background relating to bomb-making and his fascination with domestic terrorism.
On those issues, we affirm. The First Amendment allows restrictions on speech containing threats, and the jury was entitled to find that Parr's statements about bombing the federal building in Milwaukee qualified as "true threats." As for the evidence regarding Parr's background, it was highly relevant to the jury's "true threat" determination. One item of evidence, however-The Anarchist Cookbook-should not have gone to the jury in its entirety. This manual of the 1970s antiwar subculture contains recipes for making homemade explosives and weaponry. It was found in Parr's possession and parts of it were relevant and admissible, but it was a mistake to submit the entire book to the jury during deliberations. The error, however, was harmless.
Parr also raises a number of other challenges-both to his conviction and his sentence-but only one has merit. In calculating Parr's advisory sentencing range under the Sentencing Guidelines, the district court concluded that Parr's crime "involved" a "federal crime of terrorism" and therefore applied a 12-level enhancement under U.S.S.G. § 3A1.4. We conclude that the threat itself did not "involve" a crime of terrorism as that term is understood under the guideline, but Parr's crime might still qualify for the enhancement if the district court finds that a purpose of the threat was to "promote" a crime of terrorism. We therefore remand for resentencing.
In light of the remand, we need not decide the issue raised in the government's cross-appeal: whether the 10- year sentence, well below the guidelines range of 360 months to life, is unreasonable. No doubt the sentence was lenient relative to the range, but we withhold judgment on whether this degree of leniency was adequately justified. The range, and the sentence imposed, may be different on remand.
In the summer of 2004, the FBI received a letter warning that "somebody is making plans to blow up the federal building" in Milwaukee. The letter writer, John Schultz, was an inmate in Wisconsin's prison system, and the "somebody" was his cellmate, Steven Parr. Schultz told the FBI that Parr had repeatedly threatened to blow up the Reuss Federal Plaza in Milwaukee and that these comments should be taken seriously because Parr knew a lot about bombmaking chemistry, was a follower of the domestic terrorist Timothy McVeigh, and would complete his prison term (for marijuana distribution) in less than a month. After briefly investigating, the FBI learned that Parr had previously been found in possession of bombmaking instructions and that one of his prison notebooks contained an antigovernment statement. Agents convinced Schultz to wear a wire to record Parr's statements.
The night before Parr was to be released Schultz recorded a lengthy conversation between the two that would become the cornerstone of this prosecution. At first, the conversation centered on bombmaking techniques. Parr explained to Schultz how to build various types of bombs, discussed where to purchase particular chemicals useful for creating explosives, and shared his past experiences with manufacturing and detonating homemade explosives. The details were grisly. To take just one example, Parr described a bomb he had designed to be hidden in a Noxzema face-cream container and said he planned to use this device against an ex-girlfriend with the aim of disfiguring her. Parr said he had completed construction of this bomb but chickened out and never used it. At another point in the conversation, Parr confessed to burning down a different ex-girlfriend's house using napalm, a crime for which he had never been charged and for which the statute of limitations had expired.
It was against this background of disclosures that Parr described his plan to blow up the Reuss Federal Plaza in Milwaukee. He said he planned to construct a bomb inside a delivery truck, park the truck outside the federal building, and walk inside as if to make a delivery. He explained that he would briefly enter the building but then would slip outside immediately and run as far as he could before the bomb exploded.
The plan was detailed. Parr mentioned the number of detonators and drums of explosives he would use, where he would park, and how he would deflect suspicion. Some of the plan was described conditionally-he said, for example, that he would have to find a schedule of conventions or employee meetings at the Reuss Plaza so he could explode the bomb at a time when a lot of federal employees were in the building (ATF agents were of particular interest). But much of the plan was described in definite terms: "Oh, it will be extremely loud. Echoing off the buildings and . . . [the federal building], it's all glass. The damage that will be done will just be complete."
Parr explained that he wanted to be "the next McVeigh" and that he had chosen the federal building in Milwaukee as his target because it was in "down home America" and would "make a wonderful statement." He said that antigovernment "militia groups" would be inspired by his bombing, just as they were when McVeigh blew up the federal building in Oklahoma City. He said: "I may not be as radical as [McVeigh], but I surely agree with him and it might unite more people. It might generate some people to stand up and say, you know what? Enough is enough." Parr promised to give Schultz an interview afterward so he could sell his story as Parr's former cellmate to the National Enquirer and other publications.
Parr did not specify an exact time frame for his plan, noting that he would be on probation for eight years after his release and would use that time to "refine [his] techniques" because he would get only one chance. But he vowed to pull off his plan within ten years: "Well, I'm 40 now. Maybe 50. Maybe it'll be my 50th birthday present." Despite some of his more conditional statements and the uncertainty about the timing, Parr emphasized that he "absolutely" would execute his plan:
Schultz: So all this shit that you been tellin' me is not just all bullshit. Someday, someone's gonna get it I hope right?
Schultz: No doubt about it.
Schultz: Someone's gonna get it.
Parr: Someone's gonna get it.
The conversation concluded with the two men discussing Schultz's status as an accomplice by virtue of the knowledge he now had of the "inside details" of Parr's plans. Parr also mentioned that he had committed "several federal felonies" just by telling Schultz how to make a bomb, adding that "in today's terrorist environment," it's "a very serious crime" to "explain to someone how to make a bomb."
The day after this conversation, Parr was released to a halfway house but was quickly rearrested and indicted for threatening to use a weapon of mass destruction against a federal government building in violation of 18 U.S.C. § 2332a(a)(3). After his arrest Parr voluntarily spoke to FBI agents and denied having made the statements. Given the existence of the recording, that wasn't a tenable position. At trial prosecutors played the recording of Parr's remarks and called Schultz to testify about his conversations with Parr. Parr testified and admitted making the statements (he could hardly do otherwise) but claimed he had been joking-just mouthing off to his cellmate.
Prosecutors painted a different picture. Schultz testified that he had taken Parr's comments seriously. A number of witnesses-including three of Parr's ex-girlfriends and two former neighbors-testified that Parr had long hated the government, experimented with explosives, and admired domestic terrorists. One ex-girlfriend testified that Parr owned chemistry equipment and liked to experiment with chemicals and explosives. She said he liked to read books on bombmaking and ordered kegs containing black powder. More troubling, she testified that he frequently spoke of Timothy McVeigh and that he was "fascinated" with and upset by McVeigh's execution. She also mentioned that he had spoken of blowing up buildings-remarks she believed were serious-and that he went by the nickname "Uni," apparently a reference to Ted Kaczynski (the "Unabomber"), another domestic terrorist.
Another former girlfriend testified that she had seen Parr construct about a dozen pipe bombs and use one to blow up a log. She also described Parr's obsession with chemicals and bombmaking books, and she mentioned seeing a small can of black powder, which Parr kept in the garage and was afraid he would be caught ...