United States v. Parr, Steven J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-3300 & 06-3457
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
Cross-Appellant,
v.
S TEVEN J. P ARR,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 235—William C. Griesbach, Judge.
A RGUED S EPTEMBER 7, 2007—D ECIDED S EPTEMBER 18, 2008
Before B AUER, P OSNER, and S YKES, Circuit Judges.
S YKES, Circuit Judge. 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
2 Nos. 06-3300 & 06-3457
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 back-
ground, 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 terror-
ism. 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-
Nos. 06-3300 & 06-3457 3
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 judg-
ment on whether this degree of leniency was ade-
quately justified. The range, and the sentence imposed,
may be different on remand.
I. Background
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 state-
ments.
The night before Parr was to be released Schultz re-
corded 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,
4 Nos. 06-3300 & 06-3457
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
Nos. 06-3300 & 06-3457 5
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] tech-
niques” 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?
Parr: Absolutely.
6 Nos. 06-3300 & 06-3457
Schultz: No doubt about it.
Parr: No doubt.
Schultz: Someone’s gonna get it.
Parr: Someone’s gonna get it.
The conversation concluded with the two men dis-
cussing 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 state-
ments. Given the existence of the recording, that wasn’t
a tenable position. At trial prosecutors played the record-
ing 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
Nos. 06-3300 & 06-3457 7
the government, experimented with explosives, and
admired domestic terrorists. One ex-girlfriend testified
that Parr owned chemistry equipment and liked to ex-
periment 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 chemi-
cals 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 with. The
third ex-girlfriend and the two former neighbors gave
similar accounts.
Prosecutors also introduced a number of books and
notebooks found in Parr’s possession at the time of his
earlier arrest for drug distribution, including The Anarchist
Cookbook, a handbook from the 1970s that contains instruc-
tions for a litany of illicit activities ranging from the
manufacture of illegal drugs and explosives to the
creation and use of various other weapons and telecom-
munication equipment. Finally, prosecutors presented
expert testimony that Parr would have been capable of
carrying out his threat.
8 Nos. 06-3300 & 06-3457
The jury convicted Parr, and at sentencing the district
judge applied two enhancements in calculating Parr’s
advisory sentence under the sentencing guidelines: a 12-
level enhancement because Parr’s offense “involved a
crime of terrorism” and a 2-level enhancement for ob-
struction of justice based on a finding that Parr com-
mitted perjury at trial. See U.S.S.G. §§ 3A1.4, 3C1.1. The
resulting advisory guidelines range was 360 months to
life in prison. The judge considered a sentence within this
range to be “grossly disproportionate” to the seriousness
of Parr’s offense, emphasizing that it was “unclear”
whether Parr had actually intended to carry out his
threat and noting that his threat was not imminent. The
judge sentenced Parr to a below-guidelines term of 120
months in prison. Parr appealed both his conviction and
sentence, and the government appealed the sentence.
II. Discussion
A. First Amendment Challenge and Related Claims of
Evidentiary Error
Parr first argues that his conviction was unconstitu-
tional because the statements for which he was convicted
were protected by the First Amendment. But the First
Amendment does not preclude restrictions on certain
categories of speech having little or no social value, and
threats are one such category. Virginia v. Black, 538 U.S. 343,
358-59 (2003). A statement qualifies as a “true threat,”
unprotected by the First Amendment, if it is “a serious
expression of an intent to commit an act of unlawful
violence to a particular individual or group of individu-
Nos. 06-3300 & 06-3457 9
als.” Id. at 359; see also R.A.V. v. City of St. Paul, Minn., 505
U.S. 377, 388 (1992); Watts v. United States, 394 U.S. 705, 707
(1969) (distinguishing a threat from constitutionally
protected speech such as political hyperbole).
We think it readily apparent that Parr’s statements
were threats, but ultimately that question was for the jury.
United States v. Saunders, 166 F.3d 907, 912 (7th Cir. 1999);
United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.
1990). The jury was properly instructed that Parr’s state-
ments qualified as a true threat if a reasonable person
would understand that the statements, in their context
and under all the circumstances, would be interpreted as
“a serious expression of an intention to use a weapon of
mass destruction to damage the Reuss Federal Plaza.” The
jury was also instructed that it must be satisfied that
Parr “intended his statement[s] to be understood in that
manner.” The instruction continued as follows:
A “true threat” is a serious statement expressing an
intention to do an act which under the circumstances
would cause apprehension in a reasonable person, as
distinguished from idle or careless talk, exaggeration,
or something said in a careless manner. To constitute
a true threat, however, it is not necessary that [Parr]
actually intended to use a weapon of mass destruction
to damage the building or that he had the capacity to
do so. Nor is it required that he communicated the
threat to anyone connected with the Reuss Federal
Plaza.
To the extent Parr is making an argument about the
scope of the true threat doctrine and the proper defini-
10 Nos. 06-3300 & 06-3457
tion of true threats, our review would be de novo. But at
oral argument Parr explicitly disclaimed any challenge
to the jury instructions. In convicting Parr, the jury im-
plicitly found that Parr’s statements were true threats
based on the foregoing definition, and we can overturn
the verdict only if Parr shows that there was no evidence
to support it. Saunders, 166 F.2d at 912. The supporting
evidence was abundant. Parr stated repeatedly and
consistently that he was going to bomb the federal
building in Milwaukee, and nothing in the context re-
quired the jury to find that he was joking or using hyper-
bole. Cf. Watts, 394 U.S. at 708 (comments at political rally
were political hyperbole as opposed to true threats,
especially where crowd immediately laughed at the
remarks and the speaker conditioned his threat on an
event that he had vowed would never happen); see also
United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005)
(distinguishing true threat from “idle or careless talk,
exaggeration, or something said in a joking manner”).
It is true that Parr gave no precise time for carrying out
his plan and did not relay his threats directly to his in-
tended victim. But neither point is dispositive. A threat
doesn’t need to be communicated directly to its victim
or specify when it will be carried out. Cf. Porter v. Ascension
Parish Sch. Bd., 393 F.3d 608, 616-17 (5th Cir. 2004)
(threat must be “communicated to either the object of the
threat or a third person” (emphasis omitted) (emphasis
added)); United States v. Howell, 719 F.2d 1258, 1260 (5th
Nos. 06-3300 & 06-3457 11
Cir. 1983) (time frame not specified).1 Parr claimed his
discussion of bombing the Milwaukee federal building
was just prison “talk”—common among inmates who
vent their frustrations against the government—but
Schultz testified that Parr’s statements were very dif-
ferent from the ordinary antigovernment hyperbole often
heard in prisons. The jury was entitled to agree.
Parr’s constitutional argument spills over into his various
claims of evidentiary error, which can be consolidated
under the umbrella of one basic question: what sort of
evidence was relevant and admissible to prove that his
statements qualified as a true threat? At trial the govern-
ment called several of Parr’s former girlfriends and neigh-
bors to testify about his pervasive interest in explosives
and domestic terrorism, including his long history of
building pipe bombs, storing explosives, and experiment-
ing with chemicals; his admiration for domestic terrorists
1
See also United States v. England, 507 F.3d 581, 589 (7th Cir.
2007) (under witness tampering statute, threat need not be
communicated to victim); United States v. Stewart, 420 F.3d
1007, 1016 (9th Cir. 2005) (threat need not be communicated
to victim); Doe v. Pulaski County Spec. Sch. Dist., 306 F.3d 616,
624 (8th Cir. 2002) (there must be communication to “the
objects of the purported threat or to a third party”); United
States v. Martin, 163 F.3d 1212, 1214-16 (10th Cir. 1998)
(defendant told friend he was going to kill police detective);
Schneider, 910 F.2d at 1570-71 (letter threatening trial judge
was mailed to the state supreme court); United States v.
Raymer, 876 F.2d 383, 391 (5th Cir. 1989) (victim need not
actually receive threat).
12 Nos. 06-3300 & 06-3457
Ted Kaczynski and Timothy McVeigh; and his use of
the nickname “Uni,” a reference to the Unabomber.
Prosecutors also called an expert on explosives who
testified that with practice, Parr would be capable of
carrying out his plans. From this evidence the govern-
ment asked the jury to infer that Parr was serious when he
said he planned to bomb the federal building—that he
actually intended to carry out his threats—and that he
had the knowledge and ability to do so. Parr argues that
his intent and ability to carry out his threats were irrele-
vant and the district judge abused his discretion in ad-
mitting this evidence.
It is well-established that the government is not required
to prove that the defendant in a threat case intended or
was able to carry out his threats. Black, 538 U.S. at 359-60;
United States v. Fuller, 387 F.3d 643, 647-48 (7th Cir. 2004);
United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986).
Antithreat statutes thus differ from attempt or conspiracy
statutes, which require that the defendant intend or
agree to commit the predicate crime. But it does not
follow that Parr’s intent was irrelevant.
To assess whether Parr’s statements were true threats,
the jury needed to make inferences from the background
and context about his demeanor at the time he made
the statements—to decide, under the circumstances,
whether he conveyed the impression that he was serious
or joking. A person who says he is going to bomb a build-
ing is more likely to give the impression he is serious if he
actually is serious—if he actually plans to carry out his
threat and is able to do so. See Guevara, 408 F.3d at 258 (test
for a threat is whether the statements “would cause
Nos. 06-3300 & 06-3457 13
apprehension in a reasonable person”). So if the govern-
ment could show that Parr was serious about his plan
to bomb the Milwaukee federal building, that evidence
was highly relevant.
For the same reason, the background evidence was
also relevant to whether Parr intended that his statements
be understood as a threat—a question with added signifi-
cance here because the jury was told it could convict
only if Parr intended his comments to be understood that
way. Traditionally, the law in this and most other
circuits has been the opposite—an objective “reasonable
person” test has applied, an inquiry that asks whether a
reasonable speaker would understand that his state-
ment would be interpreted as a threat (the “reasonable
speaker” test) or alternatively, whether a reasonable
listener would interpret the statement as a threat (the
objective “reasonable listener” or “reasonable recipient”
test). See, e.g., United States v. Stewart, 411 F.3d 825, 827-28
(7th Cir. 2005); Saunders, 166 F.3d at 913-14 (collecting true
threat cases and discussing the distinction between the
“reasonable speaker” and “reasonable listener” ap-
proaches); Schneider, 910 F.2d at 1570-71. But the
Supreme Court’s decision in Virginia v. Black, supra, has
raised some questions about whether that is still true.
In Black, the Supreme Court considered the constitu-
tionality of a Virginia statute making it a criminal offense
to burn a cross with intent to intimidate. 538 U.S. at 347-48.
The Court invalidated the statute on First Amendment
grounds, id. at 367, but the justices were divided on the
rationale. The case produced five opinions: a plurality
opinion by Justice O’Connor (joined by Chief Justice
14 Nos. 06-3300 & 06-3457
Rehnquist, Justice Stevens—who also wrote a brief con-
currence—and Justice Breyer); an opinion by Justice
Scalia concurring in part and dissenting in part (joined in
part by Justice Thomas); an opinion by Justice Souter
concurring in part and dissenting in part (joined by Justices
Kennedy and Ginsburg); and a dissent by Justice Thomas.
Most of the debate among the justices concerned the
question of whether the statute impermissibly discrimi-
nated on the basis of content or viewpoint and the
validity of a particular provision in the statute making
the burning of a cross prima facie evidence of the defen-
dant’s intent to intimidate. For our purposes here, how-
ever, it is enough to note that the plurality offered a new
definition of true threats, part of which we have quoted
above. The entire passage is as follows:
“True threats” encompass those statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals. . . . The speaker
need not actually intend to carry out the threat.
Rather, a prohibition on true threats “protect[s] indi-
viduals from the fear of violence” and “from the
disruption that fear engenders,” in addition to pro-
tecting people “from the possibility that the threatened
violence will occur.” Intimidation in the constitution-
ally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim
in fear of bodily harm or death.
Id. at 359-60 (emphasis added) (citations omitted).
Nos. 06-3300 & 06-3457 15
Based on the language we have highlighted, some
circuits have held that a statement qualifies as a true threat
only if the speaker subjectively intended it as a threat. See
United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir.
2005); United States v. Cassel, 408 F.3d 624, 631 (9th Cir.
2005); see also United States v. Cope, No. 06-5431, 2008 WL
2630366 (6th Cir. July 3, 2008) (unpublished) (discussing
Black in the context of a threat statute and jury instruc-
tions that contained an intent element but deferring the
question of whether the Supreme Court altered the defini-
tion of true threats in light of the procedural posture of the
case).2 The court in Cassel noted that the ultimate holding
2
Not all courts have agreed that Black changed the test for
true threats. See, e.g., Porter, 393 F.3d at 616 (interpreting
Black to require only that the speaker knowingly made the
statement, not subjectively intended it as a threat). The Ninth
Circuit is internally divided on the issue. In Cassel, 408 F.3d
at 633, the court undertook a close analysis of the plurality
and separate opinions in Black and held that speech
qualifies as a true threat “only upon proof that the speaker
subjectively intended the speech as a threat.” The holding in
Cassel, however, was not followed in United States v. Romo,
413 F.3d 1044, 1051 (9th Cir. 2005); Romo, in turn, was ques-
tioned in United States v. Stewart, 420 F.3d 1007, 1017-18 (9th
Cir. 2005). Stewart did not attempt to reconcile the intra-
circuit conflict because the statute at issue in that case
contained an intent element and the evidence established a
true threat under either a subjective or objective definition.
Id. The latest Ninth Circuit pronouncement on threat doctrine
(continued...)
16 Nos. 06-3300 & 06-3457
in Black—that the Virginia statute was unconstitutional
because its prima facie intent provision effectively elimi-
nated the requirement of proving intent—also suggested
that subjective intent to threaten was required. Cassel,
408 F.3d at 631. This circuit has not yet addressed the
issue. See Fuller, 387 F.3d at 646 (a post-Black true threats
case applying, without reference to Black, the traditional
objective “reasonable person” test).
It is possible that the Court was not attempting a com-
prehensive redefinition of true threats in Black; the plural-
ity’s discussion of threat doctrine was very brief. It is
more likely, however, that an entirely objective definition
is no longer tenable. See Cassel, 408 F.3d at 631-33. But
whether the Court meant to retire the objective “reasonable
person” approach or to add a subjective intent require-
ment to the prevailing test for true threats is unclear. If
the latter, then a standard that combines objective and
subjective inquiries might satisfy the constitutional con-
cern: the factfinder might be asked first to determine
whether a reasonable person, under the circumstances,
would interpret the speaker’s statement as a threat, and
second, whether the speaker intended it as a threat. In
2
(...continued)
indicates that the conflict remains unresolved. See Fogel v.
Collins, 531 F.3d 824, 831 (9th Cir. 2008). For an excellent
summary of post-Black developments on this issue, see Paul T.
Crane, “True Threats” and the Issue of Intent, 92 VA . L.
REV . 1225, 1261-68 (2006).
Nos. 06-3300 & 06-3457 17
other words, the statement at issue must objectively be a
threat and subjectively be intended as such.
We need not resolve the issue here. Parr asked the
district court to instruct the jury on his intent, and the
judge obliged, telling jurors they could convict only if
Parr “intended his statement to be understood” as a threat.
As we have noted, Parr did not challenge this instruction
on appeal (it is doubtful he could have since he re-
quested it), and at oral argument he disavowed any claim
of instructional error. Parr put his intent at issue, and the
jury was instructed to evaluate Parr’s statements for
their objective meaning and Parr’s subjective intent.
Accordingly, the background evidence of Parr’s anti-
government convictions and his history of bombmaking
was highly relevant.
Putting the intent issue to one side, there is a separate
point here about the relevance of a speaker’s attitudes
and background in deciding whether a statement is a
threat. An important purpose of antithreat statutes is to
empower law enforcement to stop those who threaten
violence before they attempt to carry out their threats—as
we put it in a slightly different context, to allow police
to arrest a would-be assassin before “the President finds
himself staring down the barrel of a loaded gun.” Hoffman,
806 F.2d at 707; see also Fuller, 387 F.3d at 647. To perform
that function, law enforcement—the FBI, police, prosecu-
tors—must evaluate the speaker’s statements, so an
objective contextual interpretation matters. Of course,
law enforcement officers have access to a wide variety
of information about a suspect—among other things, the
18 Nos. 06-3300 & 06-3457
suspect’s history of violence, experience with weaponry,
background attitudes and activities—and all of this
information will reasonably inform their interpretation
of his statements.
In short, when a person says he plans to blow up a
building, he will naturally be taken more seriously if he
has a history of building bombs and supporting terrorism.
The upshot is that in a threat case, information about the
defendant’s background is at least potentially relevant to
gauging whether his statements qualify as a true threat.
That isn’t to say that all background information is ad-
missible; the probative value must still be weighed
against the potential for prejudice, see F ED. R. E VID. 403,
but related background evidence is relevant and poten-
tially admissible.
Parr correctly notes that a number of our cases have
assessed whether a statement is a threat by considering
how the speaker should reasonably have expected it to
be interpreted “ ‘by those to whom the maker communi-
cates a statement.’ ” See, e.g., United States v. Khorrami, 895
F.2d 1186, 1192-93 (7th Cir. 1990) (quoting Hoffman, 806
F.2d at 707). Applied strictly, this language might
suggest that a speaker’s background is relevant only if
it was known to (and therefore had the potential to affect
the interpretation of) his intended audience—in this case,
Parr’s cellmate, who wasn’t aware of all of the specifics of
Parr’s history as described by his former girlfriends and
neighbors. But we have not applied this test consistently.
See Saunders, 166 F.3d at 913-14 (contrasting the “reason-
able speaker” and “reasonable listener” cases); United
Nos. 06-3300 & 06-3457 19
States v. Aman, 31 F.3d 550, 553 (7th Cir. 1994) (quoting
Schneider) (applying a reasonable listener test); Schneider,
910 F.2d at 1570. Although our circuit “treats as relevant
evidence both the victim’s response to a statement and the
victim’s belief that it was a threat,” Saunders, 166 F.3d at
913, we have never limited the inquiry to either the
speaker’s perspective or the targeted victim’s perspective.
For example, in Hoffman, the defendant mailed a threat-
ening letter to the President, and we thought it relevant
that the Secret Service and the staff of the White House
mailroom took the letter seriously, even though they
weren’t the targets of the threat. 806 F.3d at 712. Other
information about the defendant’s background was
relevant to the analysis—for example, that he was a
member of a group whose leader had been refused a
pardon by the President—even though there was no
evidence to suggest that this background information
was known to either the White House staff or the Presi-
dent. 3 Id. at 708-09. Other cases have also considered
3
Hoffman also considered this evidence as relevant to the
defendant’s “willfulness” in making the threat, a requirement
the court apparently understood to mean that the defendant
intended his statement to be understood as a threat. 806 F.2d at
706-07. The threat statute at issue in Hoffman, 18 U.S.C. § 871(a),
prohibits any person from “knowingly and wilfully” making
any threat of harm to the President; the opinion’s discussion
of the defendant’s intent, however, centered not on the statute
but on whether the First Amendment’s threat doctrine required
proof that the defendant intended to carry out the threat or
simply proof that the defendant intended his statement to be
(continued...)
20 Nos. 06-3300 & 06-3457
contextual information that wouldn’t strictly be relevant
if the inquiry were as limited as Parr suggests—for exam-
ple, the reaction of the target of a threat even when the
speaker did not communicate the threat to the target,
Schneider, 910 F.2d at 1570, and even when the speaker
tried to prevent the target from learning of it, United
States v. Martin, 163 F.3d 1212, 1214-16 (10th Cir. 1998).
The lesson of these cases is that the true threat determi-
nation is informed by but not limited to what the recipi-
ent or target of the alleged threat knew about the defen-
dant. Contextual information—especially aspects of a
defendant’s background that have a bearing on whether
his statements might reasonably be interpreted as a
threat—is relevant and potentially admissible regardless
of whether the recipient or targeted victim had full
access to that information.
This brings us to the question of whether the evidence
at issue here should have been admitted, which depends
not just on its relevance but also on its potential to cause
unfair prejudice. The district judge concluded that the
relevance of the background evidence was not substan-
tially outweighed by any potential for unfair prejudice,
and that was not an abuse of his discretion. The jury knew
from Parr’s recorded statements that he claimed to have
vast knowledge of and experience with explosives. Admit-
ting evidence that his claims were actually true was
hardly unfairly prejudicial to him. The challenged evi-
dence was properly admitted.
(...continued)
interpreted as a threat.
Nos. 06-3300 & 06-3457 21
There is, however, one evidentiary matter that raises a
separate concern. As part of its case, the government
sought to introduce The Anarchist Cookbook, a book that
Parr referenced in his prison-cell conversations and that
had been found in his possession prior to his imprison-
ment. The judge initially held that only relevant portions
of the book would be admitted into evidence, subject to
a “specific showing of relevance” for each section admit-
ted. But he later permitted the whole book to go to the
jury during deliberations.
That was an abuse of discretion. Although portions of the
book were indeed relevant because Parr had discussed
them in his conversation with Schultz and because they
refuted his defense that he was merely engaged in hyper-
bole, much of the book was irrelevant. The Anarchist
Cookbook is a hodgepodge of instructions for committing
an array of illegal activities, many of which have nothing
to do with explosives and could only risk inflaming the
jury. So while the sections referring to homemade explo-
sives were admissible, other sections—some of which
describe the manufacture and use of drugs, guns, and
other weaponry, for example—should not have been
presented to the jury. United States v. Rogers, 270 F.3d 1076,
1081 (7th Cir. 2001) (“the prosecutor should have been
limited to using those portions of the book pertinent to
the charge”). The proper approach would have been to
photocopy and admit the relevant pages, rather than
send the entire book to the jury room.
But we conclude the error was harmless. See United States
v. Sutton, 337 F.3d 792, 797 (7th Cir. 2003). The book was a
22 Nos. 06-3300 & 06-3457
very small portion of the government’s case, and the
evidence against Parr was overwhelming, see United States
v. Holt, 170 F.3d 698, 702 (7th Cir. 1999) (improper admis-
sion of The Anarchist Cookbook was not reversible error
when other evidence against defendant was “overwhelm-
ing”). The irrelevant sections of the book were never
discussed during the trial, and the jury was specifically
instructed that Parr was not on trial for his political views.
We doubt that the jury focused undue attention on
the irrelevant sections of the book.
B. Sentencing Issues
1. The Guidelines Enhancements
a. Obstruction-of-Justice Enhancement
Parr next challenges his sentence, arguing first that the
district court improperly applied the obstruction-of-
justice enhancement. See U.S.S.G. § 3C1.1. The judge
found that Parr lied on the witness stand when he
testified about his initial interview with the FBI. Contrary
to Parr’s argument, the district judge made the neces-
sary findings to support his conclusion that Parr had
perjured himself. The judge specifically found that Parr
lied, that his lie was material, and that the lie was inten-
tional. That was all that was required. See United States v.
Dunnigan, 507 U.S. 87, 94-96 (1993); United States v. Frietag,
230 F.3d 1019, 1026 (7th Cir. 2000) (judge need only find
that testimony was “intentionally given, false, and mate-
rial”).
Parr also contends that the court misinterpreted his
testimony, but we see no clear error in the judge’s inter-
Nos. 06-3300 & 06-3457 23
pretation. See United States v. Jackson, 300 F.3d 740, 749 (7th
Cir. 2002). Parr testified that at his initial FBI interview,
he admitted making the statements for which he was
charged and said he told the agents that his comments
weren’t serious. He testified that by the end of his inter-
view, he had decided to “lawyer up” and began denying
everything. But he insisted he had initially been truthful
with the FBI:
[PARR]: At the beginning of the conversation they
said did you intend to do this? And I said of course
not.
[PROSECUTOR]: And then they asked, did you say
that you would do it? And you said of course not,
right?
[PARR]: No. I admitted that we’d had the conversation
in the beginning, without saying specifically did you
say this word? . . . It wasn’t that specific. In the begin-
ning was did you have a conversation? Yes. Did you
talk about blowing up the building? Yes. Were you
gonna do it? No, of course not.
Parr later summed up his initial conversation with the FBI
as follows: “I said it wasn’t real; I didn’t mean it. It wasn’t
real.”
But one of the FBI agents who interviewed Parr told a
completely different story. According to the agent, Parr
initially denied having made the statements:
[AGENT HAMMEN]: Again, as soon as we sat down
with [Parr], we made it clear that we were there to get
to the truth. To the bottom of this. What was going on.
24 Nos. 06-3300 & 06-3457
And again he denied—he put it on to his cell mate,
and then denied it.
[PROSECUTOR]: At any time did he tell you that he
had made statements about making a bomb, but they
were just make believe? Or responding to his cell
mate? Or any kind of what you heard today?
[AGENT HAMMEN]: No, he never brought that up.
[PROSECUTOR]: Okay. So the explanations that Mr.
Parr just gave about his interview are not consistent
with your recollections?
[AGENT HAMMEN]: That’s correct.
It is hard to imagine how the agent’s testimony and
Parr’s could be viewed as anything but contradictory. It
was not clear error for the judge to interpret Parr’s testi-
mony as materially different from the FBI agent’s, and to
conclude that Parr had perjured himself. The obstruction-
of-justice enhancement was properly applied.
b. Crime-of-Terrorism Enhancement
Parr next challenges the district court’s application of
U.S.S.G. § 3A1.4, which applies a 12-level enhancement
for an “offense . . . that involved, or was intended to
promote, a federal crime of terrorism.” The Application
Notes provide that a “ ‘federal crime of terrorism’ has the
meaning given that term in 18 U.S.C. § 2332b(g)(5).”
U.S.S.G. § 3A1.4 cmt. n.1. That statute, in turn, defines
a “[f]ederal crime of terrorism” as an offense that is
(1) “calculated to influence or affect the conduct of gov-
Nos. 06-3300 & 06-3457 25
ernment by intimidation or coercion, or to retaliate
against government conduct”; and (2) listed in 18 U.S.C.
§ 2332b(g)(5)(B)(i). 18 U.S.C. § 2332b(g)(5)(A) & (B). The
definition is stated in the conjunctive, so both require-
ments must be met. Parr’s crime of conviction is specifi-
cally listed in 18 U.S.C. § 2332b(g)(5)(B)(i); the only ques-
tion is whether it met the first requirement.
The district judge found that Parr’s threat was “not
calculated to influence or affect the conduct of govern-
ment” because it was uttered to his cellmate. Accordingly,
he concluded that Parr’s crime of conviction was not
itself a “federal crime of terrorism.” But the judge
applied the guideline anyway because the act Parr threat-
ened to commit—the bombing—was a crime of terrorism,
and that meant his offense “involved” a crime of terrorism
within the meaning of § 3A1.4.
The term “involve” as used in the guidelines is not quite
so broad; it means “to include.” United States v. Arnaout,
431 F.3d 994, 1001 (7th Cir. 2005) (citing United States v.
Graham, 275 F.3d 490, 516 (6th Cir. 2001)). Thus, we have
held that an offense “involves” a federal crime of
terrorism only if the crime of conviction is itself a federal
crime of terrorism. Id. On this understanding, if Parr’s
crime—the threat—was not itself a federal crime of terror-
ism as defined in § 2332b(g)(5)(A) and (B) (and the
district court found that it was not), then the offense did
not “involve” a federal crime of terrorism.
Because of this error, we must vacate Parr’s sentence
and remand for resentencing. It is still possible, however,
that § 3A1.4 might properly be applied on remand.
26 Nos. 06-3300 & 06-3457
The enhancement contains an alternative application:
the guideline also applies if a purpose of Parr’s offense
was to “promote terrorism.” The district court did not
determine whether the “promote terrorism” variation of
§ 3A1.4 applies and should do so on remand. See Arnaout,
431 F.3d at 1002 (“[Section] 3A1.4 must be considered
when a defendant is convicted of a federal crime of terror-
ism . . . or when a defendant’s felony conviction or
relevant conduct has as one purpose the intent to
promote a federal crime of terrorism.”); see also United
States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004) (the
“promote” language in § 3A1.4 “cast[s] a broader net” than
the “include” language, and “if [the defendant’s] purpose
is to promote a terrorism crime, the enhancement is
triggered”); United States v. Graham, 275 F.3d 490, 516 (6th
Cir. 2001) (“A defendant who intends to promote a federal
crime of terrorism has not necessarily completed, at-
tempted, or conspired to commit the crime; instead
the phrase implies that the defendant has as one purpose
of his substantive count of conviction or his relevant
conduct the intent to promote a federal crime of terror-
ism.”).
2. The Government’s Cross-appeal
Because we are vacating and remanding for resentencing,
we do not reach the government’s cross-appeal, which
argued that the 10-year below-guidelines sentence was
unreasonable. Parr’s sentence is indeed surprising—a full
20 years below the low end of the guidelines range of 360
months to life. In at least one recent case, we have reversed
Nos. 06-3300 & 06-3457 27
a deviation of similar proportional magnitude. See United
States v. Omole, 523 F.3d 691, 698-99 (7th Cir. 2008). And
although such a large deviation might be reasonable in
some circumstances, it would require a rather strong
justification, Gall v. United States, 128 S. Ct. 586, 597 (2007),
which we aren’t sure is present here. Nevertheless, after
Gall, our review of a nonguideline sentence is extremely
deferential. See United States v. Carter, No. 07-2438, 2008 WL
3844058, at *3 (7th Cir. Aug. 19, 2008). In light of the
remand, however, we need not decide whether the
district court’s justification would survive review. We
will not speculate on whether the guidelines range or the
sentence will remain the same following resentencing;
both may be challenged in a second appeal.
C. Miscellaneous Issues
Parr raises a number of other issues, which merit only
brief mention. He argues, for example, that the judge
improperly influenced the jury by mistakenly referring to
him as “Mr. McVeigh” at one point during the trial. Parr’s
attorney did not object, move for a mistrial, or ask the
judge to recuse himself, so we review for plain error, see
F ED. R. C RIM. P. 52(b), a standard that is not met here
because the judge’s comment had no potential to influence
the jury. Indeed, it was clear from the context that the
judge simply misspoke (this probably explains why Parr’s
attorney did not object), and in case there was any
doubt, the judge immediately apologized and corrected
himself.
28 Nos. 06-3300 & 06-3457
Parr also argues that his sentence was unconstitutional
under Cunningham v. California, 127 S. Ct. 856 (2007),
because it was based on facts not found beyond a reason-
able doubt by a jury. This argument has been repeatedly
rejected. United States v. Savage, 505 F.3d 754, 764 (7th Cir.
2007) (rejecting argument that Cunningham “precludes
district judges from finding facts that may enhance sen-
tences”); United States v. Roti, 484 F.3d 934, 937 (7th Cir.
2007) (“Cunningham . . . has no effect on post-Booker
federal practice.”).
For the foregoing reasons, we A FFIRM the judgment of
conviction, V ACATE the sentence, and R EMAND for resen-
tencing.
9-18-08