(CN) — A 10th Circuit panel affirmed a 25-year-sentence and terrorism enhancement for an Oklahoma man who plotted with undercover FBI agents to bomb a bank and start a revolution in 2017.
“In this appeal, Varnell argues the district court erred in concluding the government did not engage in outrageous conduct. He also challenges application of the terrorism enhancement,” wrote Senior U.S. Circuit Judge Michael R. Murphy in an unpublished 20-page opinion. “We affirm the rulings of the district court.”
FBI agents began investigating Jerry Drake Varnell after he made disparaging remarks to a Facebook friend leading up to the 2016 election. Varnell drew inspiration from the man who killed 168 people at the Alfred P. Murrah Federal Building in 1995, saying, “I think I’m going to go with what the [Oklahoma City] bomber used, diesel and anhydrous ammonia. I might have to make a distillery to process some stuff, but that’s a solid recipe.”
Throughout 2017, Varnell, then 23, told what turned out to be undercover FBI agents he wanted to build a bomb and start a revolution.
The agents picked the target and provided Varnell with several tools including a van, gloves, tape, and barrels to hold ammonium nitrate. In August 2017, Varnell drove the van loaded with what he thought was a bomb to a BancFirst in Oklahoma City and attempted to detonate the device with his cellphone. Authorities then arrested him.
In February 2019, a jury convicted Varnell on one count of attempting to use an explosive device to damage a building in interstate commerce and one count of attempting to use a weapon of mass destruction against property used in interstate commerce.
After applying a terrorism enhancement, a federal judge sentenced Varnell to 25 years in prison with a lifetime term of supervised release. Varnell appealed his conviction, claiming he would not have attempted to commit the crime if undercover FBI agents hadn’t pressured him into it.
“To the extent Varnell suggests that a lack of pre-investigation criminal activity on his part made the government’s conduct per se outrageous, we reject that suggestion,” Murphy wrote. “First, Varnell cites no authority for this proposition and, second, we have previously discerned no due process concerns with permitting the government to conduct an undercover investigation even when the government conceived and directed the crime in which defendant participated.”
The court additionally found Varnell spoke and wrote about his plans often enough for them to be taken seriously.
“Even accepting Varnell’s assertion that his initial conduct was neither criminal nor an indication he had formed a concrete plan, the conduct was deeply disturbing,” the court observed. “Varnell stated he was ‘out for blood’ and wanted to ‘go after government officials when [he had] a team.’”
Varnells said he wanted to watch the government burn.
“Varnell now asserts these statements are akin to puffery. But, in light of the frequency and specificity of Varnell’s statements, the FBI would have been remiss in ignoring them,” concluded Murphy, a Bill Clinton appointee.
Senior U.S. Circuit Judge Stephanie K. Seymour, a Jimmy Carter appointee, rounded out the panel alongside George W. Bush-appointed U.S. Circuit Judge Harris L. Hartz.
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