(CN) — A Colorado man sentenced to 20 years in prison for plotting to blow up a synagogue appealed supervised release conditions at the 10th Circuit on Tuesday, including a prohibition on possessing items associated with white supremacy including Thor’s Hammer.
Authorities arrested Richard Holzer in November 2019 after he discussed plans with undercover federal agents to blow up the Temple Emanuel, a small synagogue in Pueblo, Colorado.
Holzer accepted a plea agreement in 2020 and was sentenced to 20 years in prison. One condition of his supervised release bans Holzer from possessing antisemitic or white supremacy symbols including "Mein Kampf, swastikas, iron crosses, other Nazi memorabilia or symbolism; Thor's hammer; KKK symbolism; numeric symbols: 12, 14, 18, 88, 311, or 1488; the Aryan Fist; 14 words; the Celtic cross; the Sonnenrad; the Valknut; and the Blood Drop Cross.”
Holzer, 30, appealed to the 10th Circuit saying the ban interferes with his ability to practice his own religion. As a follower of the pagan, polytheistic Asatru faith, Holzer compared the significance of Thor’s hammer to the Star of David for Jews.
“I don’t think there can be any seriously debate here that the condition doesn’t infringe on Mr. Holzer’s First Amendment right,” said Grant Smith, Holzer’s public defender.
In the appellate brief, Smith writes the overbroad condition could prevent Holzer from owning an "Avengers" DVD or receiving a check for $88.
U.S. Circuit Judge Carolyn B. McHugh, appointed by Barack Obama, pointed out that the prohibition was more specific than Smith led them to believe.
“You’re asking us to interpret it in an absurd way,” McHugh said. “The district court tried to give some examples of what is meant by antisemitism and white supremacy, the number 12 or 14, but it didn’t mean in any universe of those numbers.”
U.S. District Judge Raymond Moore's order specifies the items are prohibited “to the extent they’re associated with antisemitism or white supremacy.” Moore is an Obama appointee.
Smith explained the federal government wanted to put out a blanket ban on any items associated with antisemitism, but Moore added specifics based on Holzer’s objection.
“Mr. Holzer’s counsel said well, what does that mean? Who is to decide what’s associated with antisemitism? That gives too much authority to the probation officer,” Smith told the panel.
U.S. Attorney Paul Farley said Judge Moore carefully balanced Holzer’s religious freedom with the prohibitions.
“The court didn’t entirely prohibit interacting with those items, but the court said if they were going to be used as a cloak to support white supremacy and Nazism, then [Holzer] would find himself right back here,” Farley explained.
Senior U.S. Circuit Judge Mary Beck Briscoe, appointed by Bill Clinton, observed the conditions were really without limits.
"It says ‘without limitation,’” Briscoe said with a laugh. “So then you’re saying you can’t use the number 12, 14, 18 without limitation?”
Farley explained the clause was meant to address any other symbols that became problematic.
“That makes it even more broad and unconstitutional, doesn’t it?” Briscoe pressed.
Farley recalled more case context was needed to understand the need to address any symbols of white supremacy and antisemitism.
“The defendant’s lifelong obsession with white supremacy and a single-minded desire [led him] to go beyond thinking and talking about to taking violent action on a mass scale,” Farley explained. “This is a dangerous person.”
U.S. Circuit Judge Robert Bacharach, another Obama appointee, saw possible holes in applying the prohibitions.
“When he gets out there won’t be an attorney to help him, there won’t be a transcript,” Bacharach said. “I’m concerned from a pragmatic standpoint how we compress the meaning of condition number nine based on this colloquy when as a practical matter, none of that will be of benefit in 235 months.”
Smith summed up the case as a tempest in a tea pot.
“To the extent the defendant is concerned about can he have an 'Avengers' DVD, I guess I’m here to say I’m not sure I see the problem there, and if a probation officer sees a problem then we can talk about that,” Smith concluded.
The panel met in person, but broadcast the hearing over YouTube to an audience of 12. The judges did not indicate when or how it would decide the case.
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