United States v. Stein et. al., 2021 WL 233286 (10th Cir. January 25, 2021) (KS): The panel affirms three defendants convictions for conspiring to use a weapon of mass destruction against people and property within the United States and conspiring to violation civil rights. Multiple issues were raised which are addressed below. Jury selection: a challenge to a district’s jury selection plan must be made within 7 days after being put on notice of the alleged deficiencies in the jury selection procedures. That challenge must also include a sworn statement of facts detailing a “substantial failure to comply with the Jury Act.” Here the defendants’ challenge was not timely and did not include a sworn statement. Even if they were not procedurally barred from challenging the plan, they could not show the plan contravened one of the 3 principles underling the Jury Act: (1) the jury selection plan did not prevent the random selection of jurors; (2) although half of the district’s divisions are not summoned for jury service, the defendants did not identify a “cognizable segment of the community” excluded from the jury pool; and (3) selecting jurors only from divisions with an active federal courthouse did not create a new category of exclusion in violation of the Jury Act. Entrapment Instruction: a court must give this instruction when there is a basis for the jury to find (1) the government induced the crime; and (2) there was a lack of predisposition on the part of the defendant to engage in the criminal conduct. These criteria can be established by evidence presented by the defendant or the government. Here, the defendants argued the government’s informant proposed the location and time for the attack, was the first to show one of them the location, urged them to meet with an undercover agent to develop the explosives and echoed the defendants anti-Muslim attitudes. The panel held the instruction was not warranted. The defendants were charged with conspiracy and predisposition is judged by examining whether they were “ready and willing to commit the crime for which they were charged,” – conspiracy to use weapons of mass destruction. Their anti-Muslim rhetoric and efforts to develop explosives predated the informant’s involvement, thus proving their conspiratorial predisposition. Additionally, the evidence did not show their plans would have failed to materialize absent the informant’s involvement. Terrorism enhancement: The defendants said USSG § 3A1.4’s terrorism enhancement which propelled their imprisonment range from 15 to 20 years to life, should have been proven by clear and convincing evidence rather than a preponderance. The panel held that even if that were so, the increase here was not so “extraordinary” that a higher standard of proof was required. The defendants also argued the enhancement did not apply under any evidentiary standard because their offense was not calculated to influence or retaliate against government conduct. Not so, said the panel. Although the defendants’ anti-Muslim sentiment motivated them, their offenses “were also calculated to influence or retaliate against government conduct.” After all, their manifesto was addressed to the US government and aimed to “wake up the American people” to the “tyrannical government.” That was enough proof to justify the enhancement. The panel dismissed defendant Wright’s separate claims of prosecutorial misconduct, improper admission of coconspirator statements and insufficient evidence to support the false statement charge. Regarding the coconspirator statements, the panel noted that before admitting such statements the court should hold a James hearing outside the jury’s presence to decide whether 3 requirements have been met: (1) a conspiracy existed by a preponderance of the evidence; (2) the declarant and the defendant were members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy. The evidence of a conspiracy must be independent of the proffered coconspirator statements. Here, the court heard enough evidence from the informant to conclude the 3 criteria had been met. Regarding the materiality of false statements, the government does not have to prove investigators were actually influenced by Wright’s denial of involvement in the conspiracy. There was adequate proof that his denial “was clearly material to the federal investigation into defendants’ plan to bomb the [] apartment complex.” Of note: Wright attempted to admit tax returns in which the informant misreported payments made to him by law enforcement. At trial he argued Fed.R.Evid. 608 allowed him to do so, but on appeal he used Rule 613. The panel pointed out that the returns would not be admissible under Rule 608 but they might be under Rule 613. The latter rule permits extrinsic evidence of a witness’s prior inconsistent statement. But Wright waived that argument because he did not make it in the district court.