Bill Sharp, OSB 78374 1342 High Street, 2nd Floor Eugene, OR 97401 (541) 345 2002 Fax

(541) 345 2178 Attorney for Def. Zacher

John E. Storkel, OSB 85087 1415 Liberty Street SE Salem, OR 97302 (503) 363 6625 (503) 375 4214 Attorney for Def. Block

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Plaintiff, v. JOYANNA L. ZACHER, and NATHAN FRASER BLOCK, Defendants. ) ) ) ) ) ) )

CR No. 06-60126-AA MEMORANDUM ON TERRORISM ENHANCEMENT

TABLE OF CONTENTS 1. Original material: Page

Before October 26, 2001, Congress did not intend all arsons to be included under the Terrorism Enhancement, but only those involving government property or connected with government2 2. Extension of argument raised by other counsel: The property damage did not create a risk of serious bodily harm (Attorney Wood for Def. Meyerhoff)...............11 3. Joinder in arguments and memoranda of other defendants: a. This was not terrorism: Property damage without the intent to harm any person does not constitute terrorism (Attorney Weinerman for Def. Gerlach)12 b. The term terrorism is vague (Attorney Weinerman for Def. Gerlach)12 c. Congress intended that a federal crime of terrorism only be one that transcended national boundaries (Attorneys Blackman and Wood for Defs. Paul and Meyerhoff)..13 d. Joinder in memoranda of all defendants arguing on May 15, 200713 ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 1

1. Congress did not intend prior to October 26, 2001, to have all arsons qualify for the Terrorism Enhancement. Read broadly, from the Governments perspective, todays version of United States Sentencing Guideline (USSG) 3A1.4, the Terrorism Enhancement (TE) could arguably apply to any arson, as long as it were calculated to influence or affect the conduct of government, 18 USC sec. 2332b(g)(5)(A). The element of affecting interstate commerce in 18 USC sec. 844(i) is an extremely low bar, as illustrated by the cases of United States v. Keen, 508 F. 2d 986 (9th Cir. 1974), cert denied 421 US 929 (1975) (fishing boat was destroyed; commercial fishing is an industry affecting interstate commerce; jurisdictional nexus found to exist) and United States v. Corbo, 555 F. 2d 1279 (5th Cir. 1977), cert denied 434 US 928 (1977) (bookstore bombed; material supplied to bookstore had traveled in interstate commerce; nexus between property destroyed and interstate commerce found to be sufficient). Prior to the adoption of Public Laws 107-56 on October 26, 2001 (the Patriot Act), Congress did not intend to apply the TE so broadly. The legislative background leading up to the Patriot Act was as follows. In April, 1995, the bombing of the federal Murrah Building in Oklahoma City took place. The next year, on April 24, 1996, Public Law 104-132 was adopted. Section 702 [ codified as USC sec. 2332b(g)(5)] of the Public Law defined Federal crime of terrorism to be an offense that (A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct; and (B) is a violation of section 844 (f) or (i) (relating to arson and bombing of certain property. ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 2

An accepted rule of statutory construction is that every term should be construed as having a meaning; a legislature is presumed to have used no superfluous words. Platt v. Union Pacific Railroad Company, 99 U.S. 48, 58 (1879). Of certain property must have a specific meaning that limited in some way the offenses under section 844(i) that would qualify as a federal crime of terrorism. Of certain property must have a meaning that was different either from government property (under 18 USC 844(f)) or property affecting interstate commerce (18 USC sec. 844(i)). If not, then Congress would have simply stated those types of property (government property and interstate commerce property) , or it would have not qualified section 844(i) at all. This point is strengthened by the fact that five years later, on October 26, 2001, Congress amended its federal crime of terrorism definition found in 18 USC sec. 2332b(g)(5)(B) as follows: section844(i) (relating to arson and bombing of property used in interstate commerce. Why the change? Why did Congress alter its reference to arson and bombing of certain property to arson and bombing of property used in interstate commerce? To answer the question one must refer to the historical circumstances surrounding the initial definition adopted in 1996 and then re-visit 2001. 1996 Amendments On April 19, 1995, the country was shocked by the bombing of the Murrah Federal Building in Oklahoma City. In 1995, USSG 3A1.4, by its title and its specific provisions, was still referring exclusively to International Terrorism. But on April 24, ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT 3

1996, following the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Public Law 104-132. Part of that Public Law was section 730, which required the U.S. Sentencing Guidelines Commission to amend USSG 3A1.4 to apply not only to international terrorism, but to domestic terrorism. The impetus for this change was without a doubt the Oklahoma City bombing. The Commission, as stated in its Commentary regarding its 1996 amendments, sought to comply with section 730 by striking international and inserting a federal crime of in section 3A1.4(a). The Commission also made a similar change to its 1996 Commentary. These amendments were effective on November 1, 1996. As noted above, the provisions of this federal crime of terrorism included a reference to 18 USC sec. 844(i) to the effect of arson and bombing of certain property. (18 USC sec. 2332b(g)(5)(B), as it existed prior to 10/26/2001). At that time, Congress did not choose to describe federal property and property used in interstate commerce. The parenthetical statements following various statutes cited section 2332b(g)(5) did not in all cases, fully encompass the breadth of the statutes. For example, 18 U.S.C. section 844(e) does much more than just relate to certain bombings. Section 844(e) also proscribes making a false threat or conveying maliciously false information concerning an attempt to kill or injure a person by means of fire or an explosive. More clearly: Section 956 prohibits far more than relating to conspiracy to injure property of a foreign government (which is its description under Section 2332b); this section actually covers the killing, kidnapping or maiming of a ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 4

person outside the United States. So, was maiming a person outside the United States, in all cases, intended to be a federal crime of terrorism? That does not appear to be the case from the description. On the other hand, where Congress intended to have the entire statute, referred to in 18 U.S.C. section 2332b, covered under its definition of terrorism, it had no trouble stating so; see for example section 1751 (relating to Presidential and Presidential staff assassination, kidnapping, and assault). When one reads section 1751, one sees that that is exactly what it proscribes. Or, section 2152, (relating to injury of fortifications, harbor defenses, or defensive sea areas): this rather complete list covers the property described in the statute. The same goes for section 2155, (relating to destruction of national defense materials, premises, or utilities), and several other sections. Congress full description of the coverage of certain statutes, and less-thancomplete description of other statutes, leads one to conclude that it did not intend to include all aspects of all statutes in its definition of terrorism. This intent is clearer in light of the legislative history discussed below. As noted above, the provisions of this federal crime of terrorism included a reference to 18 USC sec. 844(i) to the effect of arson and bombing of certain property. (18 USC sec. 2332b(g)(5)(B), as it existed prior to 10/26/2001). 2001 Amendments On September 11, 2001, a building that quite clearly affected interstate commerce, namely, the World Trade Center, was destroyed along with many lives. Political urgency was at its highest point since Pearl Harbor. Again, public and ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 5

Congressional attention was directed to the issue of terrorism. On October 26, 2001, Congress adopted Public Laws 107-56, known as the Patriot Act. In Section 808 of Public Law 107-56, Congress made amendments to its definition of federal crime of terrorism. The change that applies to our case was: section844(i) (relating to arson and bombing of property used in interstate commerce. Coming on the heels of the September 11 attack on the World Trade Center, it was not surprising that Congress would broaden its reference to section 844(i) in its definition of federal crime of terrorism. In so acting, Congress clearly felt that its prior definition meant something other than property used in interstate commerce. If

Congress uses different terms, each term is to be presumed as having a particular, nonsuperfluous meaning. Bailey v. United States, 516 U.S. 137, 144-5 (1995). But, what then did the prior term, arson and bombing of certain property mean? This Congressional focus did not change until September 11, 2001, as reflected by the above-noted change by Public Law 107-56 on October 26, 2001. The answer is this. What was Congress concerned about in responding to the 1995 Oklahoma City bombing? The answer is, acts that affected the conduct of government, as provided in the 1996 AEDPA (Public Law 104-132; codified in 18 USC sec. 2332b(g)(5)(A). There was more than just government property destroyed in the Murrah Building. Federal employees lost their lives; non-federal employees lost their lives; government property was destroyed; and non-government property, most prominently, the day care center, was destroyed. The concern of Congress was to protect government property and property that affected the conduct of government. This is what ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 6

Congress was attempting to do in 1996. Legislative history research illuminates the historical background of the Congressional hearings. In summary: 1) There is no smoking gun, to our finding, that tells us one way or the other what the Congress meant by arson and bombing of certain property. 2) There were two bills in the 1995-96 Sessions that led to the adoption of P.L. 104-132: a) H.R. 1710, introduced by Rep. Henry Hyde; b) S. 735, the Clinton administrations bill. Provisions of the House bill were ultimately merged into the Senate bill. (See copy of Legislative Calendar in Appendix at back of this memorandum.) 3) Foremost on the minds of the representatives and senators in the 1995-96 Session was the attack on the Murrah Building. Representative Hydes bill was entitled the Comprehensive Antiterrorism Act of 1995. In section 104 of Rep. Hydes bill, the crime of Acts of terrorism transcending national boundaries, that became part of 18 U.S.C. sec. 2332b, was drafted. (See Appendix) In section 206 of Rep. Hydes bill, a variation of the ultimate directive to the U.S. Sentencing Guidelines Commission was provided: The United States Sentencing Commission shall forthwith, in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that section had not expired, amend the sentencing guidelines so that the chapter 3 adjustment relating to international terrorism also applies to domestic terrorism. It was de rigeur for all witnesses appearing before the congressional judiciary committees to make note of the Oklahoma City bombing. For example, the Administrations main witness was Deputy Attorney General Jamie S. Gorelick. ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 7

This is how Deputy Attorney General Gorelick began her presentation: Thank you, Mr. Chairman, for the opportunity to testify before you today on your bill, H.R. 1710. As you mentioned at the outset, the tragic bombing of The Murrah Building in Oklahoma City on April 19 underscores the need for swift action by both branches, the executive and legislative branches. *** (Hearings before the House Judiciary Committee, June 12, 1995, Serial No. 24, p. 235) Russell Seitz, Associate of the Olin Institute for Strategic Studies at Harvard University, testified before the House Judiciary Committee the same day. Mr. Seitz entire lead-in to his testimony centered around the Oklahoma City bombing, the availability of ammonium nitrate as a substance, and the history of such explosions in the U.S. and Canada, involving two to three kilotons. On April 27 and May 24, 1995, the Senate Judiciary Committee held hearings that were entitled, Terrorism in the United States: The Nature and Extent of the Threat and Possible Legislative Responses. Orrin Hatch, the committee chair, opened the hearings by stating, starting with his second sentence: We all continue to mourn the senseless loss of life in Oklahoma City. My heart, and I think the hearts of everybody go out to the families and loved ones of those killed and injured in the tragic bombing. This heinous destruction of human life, particularly the lives of so many innocent children, is tragic beyond belief. The faces of the children who have been so brutally murdered will haunt all of us for years to come. (Hearings Before Committee on the Judiciary, United States Senate, April 27, 1995, Serial No. J-104-18, p. 1; hereinafter, Senate Hearings) Chairman Hatch went on to welcome (in order) Deputy Attorney General Gorelick and FBI Director Louis Freeh. The next person to make remarks was Senator Specter, chairman of the Terrorism Subcommittee. Senator Specter in his second sentence stated: ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 8

We have had the dreadful experience a week ago yesterday in Oklahoma City on domestic terrorism, we had the bombing of the Trade Center 2 years ago in New York City, and I believe that there are ways we can attack this problem. (Senate Hearings, p. 3) When Louis Freeh testified, he began his prepared remarks by stating: I appear today sharing the grief and immense sadness that all Americans feel in the wake of the bombing of the Murrah Federal Building in Oklahoma City eight days agoa horrible event that took the lives of innocent men, women, and children. (Senate Hearings, p. 28) Mr. Freeh went on to catalog a number of terrorist incidents, the last two of which were the 1993 World Trade Center bombing and the killing of American diplomatic personnel in Karachi, Pakistan. Subsequent witnesses in the Senate Judiciary Committee all made frequent reference to the Oklahoma City bombing. Given this historical backdrop, in 1996, Congress was not necessarily thinking of all property that affected interstate commerce; rather, Congress was concerned about property (and lives) that related to the conduct of government. A statute is construed in its context and in light of the terms surrounding it. Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). 2001 Law Change This Congressional focus did not change until September 11, 2001, as reflected by the above-noted change by Public Law 107-56 on October 26, 2001. The Senate Judiciary Committee met on September 25, 2001, to consider changes to laws relating to terrorism, including 18 U.S.C. sec. 2332b. Senator Leahy led off with his prepared ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 9

statement, referring at the beginning to the September 11 World Trade Center bombing. One of Senator Leahys 8 bullet points was: Ensuring that our definition of terrorism fits the crime. Senator Leahy, who was also a member of the Senate Judiciary Committee back in 1995-96, stated: After the killing of 168 in the destruction of the federal building in Oklahoma City in 1995, this Committee held a series of hearings beginning with that chaired by Senator Specter two weeks after the incident and proceeding with additional full Committee and subcommittee hearings over the ensuing weeks. The Senate considered a bill quickly, within two months of the incident, but the House-Senate conference on that measure extended over the next year. *** (Hearings Before the Committee on the Judiciary, United States Senate, 9/25/2001, Serial No. J-107-40, p. 3) As Senator Leahys statement to the Senate Judiciary Committee indicates, it is indisputable that the two incidents, Oklahoma City in 1995 and the World Trade Center in 2001, were the catalyzing events and main foci for the legislation that was enacted. The acts of the defendant, if not all defendants, pre-date the October 26, 2001, legislation. Any application of the October 26, 2001, legislation to this case would constitute an ex post facto application of law, in violation of Article I, Section 10, clause 1 of, and the due process clause of the Fifth Amendment to, the U.S. Constitution,. Moreover, the plea agreement in section 5 provides, Defendant and Government agree that the guidelines calculations should be derived from the United States Sentencing Commission Guidelines Manual with effective date of November 1, 2000. Statutory changes after November 1, 2000, cannot be constitutionally applied to this case.

ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT 10

If the term, arson and bombing of certain property has any meaning at all, in its historical and legislative context of 1996, it has to mean, government property and property that relates to governmental functions. Put another way, in 1996, Congress was concerned with protecting government property and property that had a connection to the conduct of government. Arson of property that merely affected interstate commerce would not be sufficient to trigger the application of the TE as limited by its then-existing definition of federal crime of terrorism prior to October 26, 2001. Even if the current TE could be argued by the Government to be so broad as to include practically any arson that affected the conduct of government, it is clear that the prior TE that existed from November 1, 1996, until its definitional amendment on October 26, 2001, was narrower. By terms of the plea agreements for defendants Zacher and Block, as well as defendants Paul and McGowan (and perhaps other defendants), the Sentencing Guidelines of 2000 apply to these cases. The arguments in this memorandum are intended to address the general legal issue of the applicability of the Terrorism Enhancement to all defendants. In their Sentencing Memoranda, defendants Zacher and Block will discuss why the Terrorism Enhancement does not apply to their specific cases. 2. No risk of serious bodily injury Ms. Wood, representing defendant Meyerhoff, makes the excellent point that for the conduct to be terrorism, it must create a substantial risk of serious bodily injury to another person or be dangerous to human life. To expand Ms. Woods argument: this risk of serious bodily injury must be by destroying or damaging any structure, ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 11

conveyance, or other real or personal property (18 USC sec. 2332b(a)(1)(B). This is important as regards the Romania and Jefferson Poplar arsons, as the destruction of the property did not create a substantial risk of serious bodily injury to another person. The Governments sole argument on this point will be that in the Jefferson Poplar arson, someone placed an incendiary device near a propane tank. That will not qualify as a substantial risk of serious bodily injury by destroying or damaging any structureor otherpersonal property under 18 USC sec. 2332b(a)(1)(B). The propane tank was not destroyed. Had it been destroyed by explosion, even if no one had been injured, in that case the Government would have had an argument under the statute that there was a substantial risk of serious bodily injury. But the Government cannot rely on the potential of a potential: the potential outcome of the propane tank exploding, creating the potential risk to those around it, is not what the clear terms of the statute provide. 3. Joinder in Arguments and Memoranda of Other Defendants a. These acts were not terrorism Mr. Weinerman makes the persuasive argument that property damage only, unaccompanied by an intent to injure any person, is not what Congress meant by terrorism. Attorney General Gonzalez in his 2006 press conference has tried to label acts of property damage as terrorism, but he has political motivations to expand the common, ordinary meaning of the term to fit these cases. No one was truly terrorized, for example, by vehicles being burned in the Romania and Jefferson Poplar Farm cases, nor in the other incidents of property damage. Mr. Weinerman points out that no one was ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 12

injured in any of the 14 incidents of property damage, and this was a pattern that reveals the design of the defendants as being limited to damaging property. We join in Mr. Weinermans memorandum. b. The term, terrorism as used in 18 USC 2332b(g)(5) is vague Mr. Weinerman makes the argument that there are 19 different definitions of terrorism in the federal statutes, and that the conduct of his client was sufficiently different from that of the persons whose acts Congress was responding to. We understand his argument to be that the definition of federal crime of terrorism in 18 U.S.C. sec. 2332b(g)(5) violates the due process clause of the Fifth Amendment in that it is vague. c. The Terrorism Enhancement requires that the defendants acts transcend national boundaries We join in the arguments of Attorneys Blackman and Wood (representing defendants Paul and Meyerhoff) regarding the historical context of 18 USC sec. 2332b and its definition of federal crime of terrorism, as applying only to terrorism transcending national boundaries. Mr. Blackman and Ms. Wood have also noted that for the TE guideline to apply, the conduct must have been calculated to influence or affect the conduct of government. The Romania and Jefferson Poplar arsons, and others, did not involve any such calculation on the part of defendants Zacher or Block. We join Attorneys Blackman and Wood in these arguments. The Southern District of New York decision of United States v. Salim, 287 F. Supp. 2d 250 (S.D. N.Y. 2003) has been cited to the Court in support of this contention. ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT - 13

d. Joinder in memoranda and arguments of all defendants We join in the memoranda and arguments of counsel for all co-defendants arguing before the Court on May 15, 2007 as regards the applicability of the terrorism enhancement (TE) under United States Sentencing Guideline (USSG) 3A1.4. Dated: April 26, 2007 Respectfully submitted, /s/ William R. Sharp ________________________________ William R. Sharp, OSB 78374 Attorney for Defendant Zacher /s/ John E. Storkel ___________________________ John E. Storkel, OSB 85087 Attorney for Defendant Block

ZACHER-BLOCK MEMORANDUM ON TERRORISM ENHANCEMENT 14(END)

Bill Sharp, OSB 78374 1342 High Street, 2nd Floor Eugene, OR 97401 (541) 345 2002 Fax (541) 345 2178 Attorney for Def. Zacher Email sharp3223@comcast.net

John E. Storkel, OSB 85087 1415 Liberty Street SE Salem, OR 97302 (503) 363 6625 (503) 375 4214 Attorney for Def. Block Email oceanpoet@comcast.net

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON UNITED STATES OF AMERICA, Plaintiff, v. JOYANNA L. ZACHER, and NATHAN FRASER BLOCK, Defendants. ) ) ) ) ) )

CR No. 06-60126-AA APPENDIX TO MEMORANDUM ON TERRORISM ) ENHANCEMENT

Herewith is the appendix to the defendants memorandum on the applicability of the terrorism enhancement under USSG 3A1.4. Public Law 104-132 (April 24, 1996)..A-1 Public Law 107-56 (October 26, 2001)A-5 Hearings, Committee on the Judiciary (House, 4/4/95 and 6/12/95)A-8 (Excerpts) Hearings, Committee on the Judiciary (Senate, 4/27/95 and 5/24/95)..A-22 (Excerpts) Hearing, Committee on the Judiciary (Senate, 9/25/01)A-26 Legislative Calendar...A-29 Respectfully submitted, /s/ William R. Sharp Attorney for Def. Zacher /s/ John E. Storkel Attorney for Def. Block