United States v. Katherine Christianson ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-1526 & 09-1615
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K ATHERINE C HRISTIANSON AND B RYAN R IVERA ,
Defendants-Appellants.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 08 CR 107—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 24, 2009—D ECIDED N OVEMBER 9, 2009
Before P OSNER, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. In the summer of 2000,
defendants Katherine Christianson and Bryan Rivera
were members of the Earth Liberation Front, identified
by the FBI as a domestic eco-terrorist group. Besides
attending meetings and protests, they also found time
to destroy several research projects at a U.S. Forest
Service facility in Rhinelander, Wisconsin. They were not
2 Nos. 09-1526 & 09-1615
prosecuted until eight years later when they were
indicted for and pleaded guilty to destroying govern-
ment property. The district court sentenced Christianson
to 24 months’ and Rivera to 36 months’ imprisonment
respectively; both sentences were substantially lower
than the recommended guideline range but the govern-
ment does not contest them. On appeal, the defendants
challenge the district court’s loss-amount calculation;
Rivera also argues that the district court erred in
applying the terrorism enhancement. We affirm.
I.
In July 2000, Katherine Christianson went to the
Earth First! Rendevous in Tennessee with her then-boy-
friend of several years, Ian Wallace.1 There they met
1
As noted in the pre-sentence report submitted to the district
court, Earth First! is an environmental advocacy group that
emerged in the southwestern United States in the late 1970s.
It holds annual meetings, or Rendezvouses, to discuss en-
vironmental issues. During its early years, much of its
activities involved peaceful “sit-in” type protests. But in the
late 1980s its focus shifted to “direct action,” including
criminal activity to combat forms of development that they
associated with the destruction of wildlife habitats. This
changed emphasis attracted many new members, some with
anarchist political backgrounds. In the early 1990s, Earth First!’s
focus again shifted as it became a mainstream movement. And
the members who refused to abandon criminal activity and
(continued...)
Nos. 09-1526 & 09-1615 3
Daniel McGowan and Bryan Rivera. During the
Rendevous, the four discussed vandalizing the U.S.
Forest Service (“Forest Service”) facility in Rhinelander,
Wisconsin, where the Forest Service was conducting
several genetic-engineering experiments on trees.
After the Rendevous, the four traveled to Minneapolis,
Minnesota, to demonstrate at the International Society
of Animal Genetics conference. During their time at the
conference, they traveled to Rhinelander and conducted
reconnaissance of the facility. After seeing the site,
they determined that four people would be needed to
effectively carry out their mission. Needing a fifth person
to act as a driver, Wallace recruited a friend from
high school.
On the night of July 20, 2000, the four entered the
facility and damaged or destroyed more than 500 trees,
either by cutting them down or by girdling them. Girdling,
or as it is more commonly known “ring barking,” consists
of completely removing a strip of bark around a tree’s
outer circumference, causing the tree’s eventual death.
XIII Oxford English Dictionary 958 (2d ed. 1989). In
addition to destroying the trees, they used etching
cream and spray paint to leave their “calling card” on
several Forest Service vehicles. The group, however,
had to cut short its sortie after fearing they would be
discovered by a security guard. Although they left
1
(...continued)
take up a petition formed a militant off-shoot called the
Earth Liberation Front.
4 Nos. 09-1526 & 09-1615
in haste, they were careful to dispose of their clothes
and tools on the way back to Eau Claire, Wiscon-
sin, where they dropped off their driver before returning
to Minneapolis.2
The next day, Christianson and McGowan issued a press
release in the name of the Earth Liberation Front (“ELF”)
and on behalf of native forests everywhere. In the
communique, they claimed responsibility for the attack
and admonished their allies
to cease quibbling with the Forest Service over
details of their genocidal plans . . . . The sooner we
realize that the Forest Service, like industry, are
capitalists driven by insane desire to make money
and control life, the better. Than [sic] we can
start taking more appropriate action.
What they meant by “more appropriate action” is not
clear, but from ELF’s other attacks, it could be read as
foreshadowing further acts of violence against the
Forest Service. From there, the case went cold.
Eventually, in January 2007, Wallace was implicated
in an attempted bombing on the campus of Michigan
Tech University. He subsequently cooperated with the
authorities and shared the details of the attack on the
Rhinelander facility. Christianson and Rivera were ulti-
mately indicted and pleaded guilty to willfully injuring
property belonging to the United States, causing damage
2
The driver, Aaron Ellringer, pleaded guilty to a mis-
demeanor and was sentenced to four days of incarceration.
Nos. 09-1526 & 09-1615 5
greater than $1000, in violation of 18 U.S.C. §§ 2 and
1361. The government initially estimated the loss
amount was between half a million and a million dollars.
At sentencing, Christianson challenged the loss calcula-
tion. To support its position, the government called Don
Riemschneider to testify; he was a research plant scientist
at the Rhinelander facility in the summer of 2000. After the
attack, Riemschneider had prepared a report for his
supervisor and the FBI on the damage from the attack. In
it, he estimated a total loss amount in excess of $420,000
based on the damage caused to the Western Black Cotton-
wood (“Cottonwood”) experiment and an advanced
generation clone experiment that was destroyed. For
various reasons, he did not include estimates for any of
the other experiments that were destroyed by the defen-
dants. At sentencing, he produced his report and
repeated his initial estimates, further explaining their
bases. He estimated that to replicate the Cottonwood
experiment it would cost $400,000. He based this total
on the project’s costs between 1983-1993, when it was
most active; during those years he estimated the
project cost at $40,000 per year. In support of this total, he
cited three specific expenses that made up the bulk of
the costs: the gathering of samples for the experiment,
the costs of maintaining the experiment and the cost of
hiring a technician to assist in collecting measurements
during two years of the experiment. Riemschneider also
stressed that this amount was calculated using costs
between 1983-1993, and it would be much higher today.
He also added that funding for the project was discon-
6 Nos. 09-1526 & 09-1615
tinued in 2000; it is unclear whether the defendants’
conduct had anything to do with that decision.
After hearing Riemschneider’s testimony and the ar-
guments of counsel, the district court adopted
Riemschneider’s estimate of $424,361 as the loss amount
attributable to Christianson’s conduct, noting this was
“a very very conservative [estimate] and lower than
what was actually experienced.” It also found that
Christianson’s crime was among those listed in the terror-
ism enhancement under U.S.S.G. § 3A1.4 and that she
committed those acts to influence or affect the conduct
of government by intimidation or coercion. The applica-
tion of the terrorism enhancement automatically raised
her offense level to 29, with acceptance of responsibility,
and her criminal history to a Category VI. Her guideline
range was then calculated at 151-188 months. After con-
sulting the factors at 18 U.S.C. § 3553, the district court
sentenced Christianson to 24 months in prison.
The same district court sentenced Rivera. At sen-
tencing, Rivera agreed to the loss amount calculated at
Christianson’s hearing but argued that the terrorism
enhancement was inapplicable. The district court over-
ruled his objection. He had the same guideline range as
Christianson: 151-188 months. But after noting his lack of
an apology or some form of regret, the district court
sentenced him to 36 months’ imprisonment.
II.
On appeal, both defendants challenge the district court’s
loss findings. Their argument is two-fold. First, they
Nos. 09-1526 & 09-1615 7
contend that the Forest Service did not suffer a loss
because the Cottonwood experiment was terminated and
thus worthless. Second, they claim the district court erred
in calculating the loss amount at $424,361 because the
evidence presented for the value of the Cottonwood
experiment and the advanced generation clone experi-
ment was unreliable. They do not dispute the figures
tied to the vehicles.
This is a mixed question of fact and law. “The district
court’s assessment of the amount of loss is a factual
finding, which we will not disturb unless it is clearly
erroneous.” United States v. Berheide, 421 F.3d 538, 540
(7th Cir. 2005). However, the district court’s conclusion
that the destruction of the Cottonwood experiment
caused the Forest Service to suffer a “loss,” as that term
is used in U.S.S.G. § 2B1.1, is reviewed de novo. Id. Defen-
dants’ argument on this point hinges on the fact that
the Cottonwood experiment’s funding was discontinued
in 2000. They argue that once the funding was cut the
experiment and the trees ceased to have any value. This
is obviously not so. The fact that the experiment’s
funding was cut in 2000 does not mean that the experi-
ment was worthless or that the Forest Service did not
suffer a loss. The trees’ value was not defined in relation
to their continued funding, nor was there any evidence
they would be ring-barked the moment funding was
discontinued. Rather, the trees were an essential part of
a twenty-year experiment, the fruits of which were
never realized because of defendants’ conduct. If the
defendants chose a different method of protest that
night, the trees would still be there and the prior decades
8 Nos. 09-1526 & 09-1615
of research and toil would not be lost. The district court
did not err in holding that defendants’ conduct caused
the Forest Service to suffer a loss.3
The crux of defendants’ challenge to the loss-amount
total is that the district court erred when it accepted
Riemschneider’s testimony and found that the cost of
replacing the experiment was $424,361. At Christianson’s
sentencing, the government presented evidence of the
loss amount through Riemschneider’s testimony and the
report he prepared in August 2000. He testified to the
costs associated with the Cottonwood experiment and
the advanced generation clone experiment and based
these estimates on what he knew from his work on the
project. His testimony and estimates were in accord
with the report he prepared a month after the damage.
And after listening to the testimony and making its own
inquiries, the district court credited Riemschneider’s
3
The real issue at this point would still be present regardless of
whether the funding was cut: how does a court determine
the value of an ongoing experiment, the fruits of which could
be worth a lot, a little, or something in between? The Guide-
lines anticipate such impossible situations by providing a less
onerous and speculative method of calculating the loss
involved: the cost of replacing the experiment. U.S.S.G. § 2B1.1,
app. n. 3(C)(i); see United States v. Galvez, 108 F. Supp. 2d 1369,
1374 (S.D. Fla. 2000) (noting problems calculating lost profit
with any degree of accuracy and instead choosing to use the
replacement cost as a loss figure). Here, the district court
applied such a calculation.
Nos. 09-1526 & 09-1615 9
testimony, finding that his estimates were at least rea-
sonable: “this estimate is actually a very very con-
servative one and lower than what was actually experi-
enced.”
A district court’s loss-amount calculation “need only be
a reasonable estimate of loss.” United States v. Watts, 535
F.3d 650, 658 (7th Cir. 2008) (quotation omitted). And we
review the finding for clear error. Id. To establish clear
error, the defendant must show “that the court’s loss
calculations ‘[were] not only inaccurate but outside the
realm of permissible computations.’ ” United States v.
Radziszewski, 474 F.3d 480, 486 (7th Cir. 2007) (quoting
United States v. Lopez, 222 F.3d 428, 437 (7th Cir. 2000)
(further citation omitted)).
In this case, the district court’s finding was well
justified: Riemschneider’s testimony was supported by
a report he prepared shortly after the attack, and the
district court credited Riemschneider’s testimony. We
defer to “the district court’s determination of witness
credibility, which can virtually never be clear error.” United
States v. Acosta, 534 F.3d 574, 584 (7th Cir. 2008) (quotation
omitted). Further, a review of the sentencing transcript
assures us that “the district court’s inquiries were suffi-
ciently searching to ensure the probable accuracy of the
available evidence.” United States v. Lopez, 222 F.3d 428,
438 (7th Cir. 2000). There is also no showing that the
loss amount was inaccurate, and it is certainly not
outside the realm of permissible computations. Id. at 437.
Accordingly, we find that the district court did not
commit clear error in calculating the loss amount.
10 Nos. 09-1526 & 09-1615
III.
Rivera also appeals the district court’s finding that
the terrorism enhancement under U.S.S.G. § 3A1.4
applies to his conduct. He makes two arguments for
why that enhancement does not apply. The first is
visceral and rests on the assumption that he is not a
terrorist because his only motivation was “the hope of
saving our earth from destruction” and redressing
“the misdeeds and injustice that [he] felt industry
inflicted on the natural world.” The second rests on
statutory interpretation grounds. Both lack merit.
Turning to the first argument, this much has to be
clear: ELF and its members are not to be confused with
the typical environmental protestor denouncing and
peacefully demonstrating against such things as nuclear
power, strip coal mining, cutting old-growth timber,
offshore drilling, damming wild rivers, and so on. Rather,
ELF members are of a different sort, and to group them
with the well-meaning complainers of controversial
projects is both inaccurate and purposely misleading.
ELF’s members take their activism to unconscionable
levels: since ELF’s inception in 1987, its members have
been responsible for bombings, arson, vandalism, and a
host of other crimes. In fact, between 2000 and 2005, 43 of
the 57 reported terrorist attacks committed on American
soil were done by ELF members or their sister organiza-
tion, the Animal Liberation Front.4 ELF’s terror attacks
4
Federal Bureau of Investigation, Terrorism 2002-2005 64-
65 (2005), available at http://www.fbi.gov/publications/terror/
(continued...)
Nos. 09-1526 & 09-1615 11
have caused over fifty million dollars in damage
to public and private property, including the arson of
condominium complexes, multiple university research
facilities, a ski resort, logging facilities, a high-voltage
energy tower, and almost a score of other pieces of
private property.5 A perfunctory survey of some of the
cases involving ELF shows the breadth of its
destructive force, including a conspiracy stretching over
five states and involving nineteen separate acts of ar-
son.6 Just as telling is the fate of the two uncharged co-
conspirators in this case: Wallace is incarcerated for
the attempted bombing of a university building, and
McGowan is serving 84 months for arson and a host of
other crimes. These people are not peaceful protestors.
4
(...continued)
terrorism2002_2005.pdf.; see also id. at 41 (“The majority of
domestic terrorism incidents from 1993 to 2001 were
attributable to the left-wing special interest movements the
Animal Liberation Front (ALF) and the Earth Liberation
Front (ELF).”).
5
Id. at 3-4, 22, 29; see also id. at 7-9, 29 (noting five attacks
that caused over fifty-five million dollars in damage).
6
E.g., United States v. Tankersly, 537 F.3d 1100, 1103-05 (9th
Cir. 2008) (noting defendants’ conspiracy involving arson and
bombings); see also id. at 1103, n.2 (summarizing the arsons
committed in the conspiracy); United States v. Thurston, 2007
WL 1500176 **1-4 (D. Or. May 21, 2007) (detailing a multi-
defendant conspiracy across five states focusing on arson and
bombings of private property); United States v. McDavid, 2006
WL 734877, *3 (E.D. Cal. 2006) (noting defendant’s advocacy
for Molotov cocktails and threats to kill a confidential source).
12 Nos. 09-1526 & 09-1615
Here, the defendants’ actions were of the same sort,
only they refrained from using explosives: they con-
ducted reconnaissance and determined that to be
effective they needed another person; they trespassed
onto the facility and destroyed over 500 trees that were
part of several experiments, ruining in a single night
decades of others’ work; they vandalized several vehicles
with the ominous threat that “WE ARE WATCHING”
and “THE ELVES ARE WATCHING.” And that was all
before they were scared away by a security guard. Far
more havoc may have been done had they not been
interrupted.
Beyond the damage inflicted, it is impossible to cal-
culate how these acts would have intimidated the
workers of the Rhinelander facility. Arriving at work the
next day, employees were greeted with “F*** U USFS” and
“F*** TREE BIOTECH” spray-painted on their work
vehicles. And as the employees surveyed the facility,
they discovered that valuable experiments they spent
decades working on had been destroyed. The employees
would be familiar with ELF, and the communique
about the attack the next day foreshadowing “more
appropriate action” would likely make employees think
twice before they stayed late at work or came in on the
weekend to finish some project. Such behavior is not in
the same genus of non-destructive and non-violent
protests that can be honestly described as well meaning
but misguided.
Simply put, a terrorist is “any one who attempts to
further his views by a system of coercive intimidation.”
Nos. 09-1526 & 09-1615 13
XVII Oxford English Dictionary 821 (2d ed. 1989); accord
Webster’s Third New International Dictionary 2361 (1981)
(“an advocate or practitioner of terror as a means of
coercion.”). The Oxford English Dictionary goes on to
explain that the “term now usually refers to a member
of a clandestine or expatriate organization aiming to
coerce an established government by acts of violence
against it or its subjects.” Id. The Guidelines provide
a practical definition for what constitutes an act of terror-
ism, and thereby establishes a very workable definition
of who is a terrorist. It looks at the crime involved and
the perpetrator’s motive. If the act is among the litany
of crimes listed in § 2332b(g)(5)(B), which include a bevy
of the most harmful and odious acts in the criminal
code, including everything from murder and torture to
the destruction of government property, and it was
“calculated to influence or affect the conduct of govern-
ment by intimidation or coercion, or to retaliate against
government conduct,” then it is a federal crime of terror-
ism. Id. And for all intents and purposes at sentencing,
that person is a terrorist.
Here, the purpose behind defendants’ actions was to
further ELF’s political agenda: the end to industrial
society. The method they chose to communicate this
desire was not a peaceful protest with speeches, songs,
and a petition outside the facility but instead a
violent attack against the facility and the experiments.
Because the defendants do not look the part of our
current conception of a terrorist does not separate them
from that company. Indeed, it doesn’t matter why the
defendants oppose capitalism and the United States
14 Nos. 09-1526 & 09-1615
government—if they use violence and intimidation
to further their views, they are terrorists. Despite
Rivera’s denial that he is a person who uses violence
and intimidation to serve his political ends, the
evidence sufficiently defines him as a terrorist, and the
enhancement is appropriate.
Alternatively, Rivera argues that the district court erred
in applying the terrorism enhancement to his conduct
because his crime was purely domestic and did not tran-
scend national boundaries. We review a district court’s
application of the Guidelines de novo. United States v.
Lacey, 569 F.3d 319, 324 (7th Cir. 2009). The terrorism
enhancement at § 3A1.4 of the Guidelines applies if the
crime “involved, or was intended to promote, a federal
crime of terrorism.” U.S.S.G § 3A1.4. The Guidelines
define “federal crime of terrorism” with reference to
18 U.S.C. § 2332b(g)(5). That subsection has two require-
ments. The first is that the crime was “calculated
to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against govern-
ment conduct.” 18 U.S.C. § 2332b(g)(5)(A). There is no
question about that here. The second is that the crime is
among those listed in § 2332b(g)(5)(B); among the crimes
listed there is the destruction of government property
under § 1361. And that is what Rivera pleaded guilty to.
Rivera, however, argues that § 3A1.4 could not simply
incorporate the definition provided in § 2332b(g)(5)
without incorporating all of § 2332b, which is titled
“Acts of Terrorism Transcending National Boundaries.”
Much of this rests on Rivera’s belief that by only incorpo-
Nos. 09-1526 & 09-1615 15
rating § 2332b(g)(5) and not all of § 2332b, the sen-
tencing commission is discarding much of § 2332b as
meaningless or surplus. Notwithstanding Rivera’s argu-
ment, nothing prohibits the Sentencing Commission
from defining a term by referencing a particular definition
in a statute while ignoring the rest of the statute. It, in
fact, does it throughout the Guidelines. E.g., U.S.S.G.
§ 2M6.1 app. n. 1.; id. § 3b1.3, app. n. 2(b) & 5(a); id. § 3B1.5
app. n. 1 (defining “Drug trafficking crime” as that term
is defined in 18 U.S.C. § 924(c)(2)).
A defendant who does not meet the requirements for
a conviction under § 2332b may still fall under the pro-
visions of § 2332b(g)(5) and in turn warrant the
terrorism enhancement. United States v. Arnaout, 431
F.3d 994, 1002 (7th Cir. 2005). We have previously
noted that § 3A1.4 applies “where a defendant is
convicted of a federal crime of terrorism as defined by
18 U.S.C. § 2332b(g)(5)(B) or where the district court
finds that the purpose or intent of the defendant’s sub-
stantive offense of conviction or relevant conduct was
to promote a federal crime of terrorism as defined by
§ 2332b(g)(5)(B).” United States v. Hale, 448 F.3d 971, 988
(7th Cir. 2006) (quoting Arnaout, 431 F.3d at 1001)
(internal alterations omitted); see also United States v.
Ashqar, 582 F.3d 819 (7th Cir. 2009) (upholding the en-
hancement applying to a defendant convicted of criminal
contempt). On this point the Fifth Circuit has observed
that of the crimes listed in § 2332b(g)(5)
none . . . has as an element requiring conduct tran-
scending national boundaries. All that section 3A1.4
16 Nos. 09-1526 & 09-1615
requires for an upward adjustment to apply is that
one of the enumerated offenses was calculated to
influence or affect the conduct of government by
intimidation or coercion, or to retaliate against gov-
ernment conduct.
United States v. Harris, 434 F.3d 767, 773 (5th Cir. 2005)
(quotation omitted). Thus, we reject Rivera’s argument
that for the terrorism enhancement under § 3A1.4 to
apply, his conduct must meet the jurisdictional element
to § 2332b, i.e., that the crime transcend national bound-
aries. 18 U.S.C. § 2332b(b).
IV.
The district court did not err in finding that the destruc-
tion of two experiments and the vandalism of several
Forest Service vehicles caused the government to suffer
a loss nor did it err in calculating the loss amount at
$424,361. Further, there is no merit to Rivera’s argu-
ment that he’s not the sort of person who should be
labeled a terrorist and that the terrorism enhancement
does not apply unless his crime transcended national
boundaries. Thus, we A FFIRM .
11-9-09