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United States v. Stein.

Nos. 19-3030, 3034, & 3035.  D.Kan. Judge Kelly. Conspiracy to Use Weapons of Mass Destruction—Conspiracy to Violate Civil Rights—Jury Selection Challenge—Entrapment Instruction—Terrorism Enhancement.

January 25, 2021

Defendants schemed to bomb a mosque and an apartment complex where a large number of Somali immigrants resided. They manufactured their own explosives and met with an FBI undercover employee posing as an arms dealer. Defendants were charged with conspiring to use a weapon of mass destruction against people and property in violation of 18 USC § 2332a(a)(2) and knowingly and willfully conspiring to violate the civil rights of the residents of the apartment complex in violation of 18 USC § 241. A jury convicted them on all counts. At sentencing, the district court applied the terrorism enhancement over defendants’ objection and then varied downward from the range of life imprisonment.

Defendants argued on appeal that the method of petit jury selection violated the Jury Act, contending that the trial court erred in not drawing jurors from the division where most of the conduct took place. Here, defendants’ Jury Act motions were procedurally defective because they were not filed within seven days of notice of the jury selection plan and were not supported by a sworn statement of facts. Further, even if defendants’ challenge was not procedurally barred, it failed on the merits because the jury selection plan did not prevent the random selection of jurors.

Defendants also argued that the district court erred in not instructing the jury on an entrapment defense. To raise a valid entrapment defense, a defendant must show an evidentiary basis on which the jury could find (1) government inducement of the crime, and (2) a lack of predisposition on the defendant’s part to engage in the criminal conduct. Here, there was extensive evidence of defendants’ eagerness to enter into the conspiracy, and viewing this in the light most favorable to defendants, the evidence presented at trial did not create a triable issue as to inducement. Accordingly, the district court did not err in not offering an entrapment instruction.

Defendants further contended that the district court erred in applying the terrorism enhancement at sentencing. They argued that because the enhancement significantly increased their guidelines range, it should have been subject to the clear and convincing standard of proof. Here, the enhancement increased the guidelines’ range from 15 to 20 years to life imprisonment, and defendants received sentences ranging from 25 to 30 years. Such enhancement did not increase the sentence by such an extraordinary amount to justify a higher standard of proof. Further, the district court did not err in applying the enhancement under any standard of proof because there was ample evidence demonstrating that the offenses were calculated to influence or retaliate against government conduct. Therefore, the district court properly applied the terrorism enhancement.

Defendant Wright raised arguments that (1) the government engaged in prosecutorial misconduct, (2) the district court abused its discretion in determining the admissibility of recordings as coconspirator statements, (3) the district court erroneously denied his motion for judgment of acquittal on false statements charges, and (4) cumulative error demands reversal. First, there was no evidence that the government engaged in prosecutorial misconduct. Second, coconspirators statements were properly admitted under Fed. R. Evid. 801(d)(2)(E). Third, the jury’s verdict on the false statements charges was supported by the record, so the district court properly denied the motion for acquittal. Fourth, Wright failed to establish the existence of multiple errors, so reversal is not warranted.

The convictions and sentences were affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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