(CN) — Three men who plotted to blow up an apartment building inhabited by Muslim immigrants in Garden City, Kansas, asked a 10th Circuit panel on Monday to toss their 25- to 30-year sentences.
The Federal Bureau of Investigation tailed the so-called Kansas Security Force for eight months between 2015 and 2016. The militia group was founded to respond to potential catastrophic events from natural disasters to the breakdown of the U.S. government. According to court documents, many members connected over survival training, defense-tactics and fears of radical Islam.
In 2016, Curtis Allen and Gavin Wright told the FBI mole they had successfully tested a small homemade explosive and were seeking supplies to make fertilizer bombs. According to court documents, the men along with Patrick Stein planned to put the bombs in trashcans around the apartment complex and detonate them during prayer time using pre-paid cellphones.
The investigation led to the jury trial and conviction of Allen, Wright and Stein for their roles in plotting to blow up the West Mary Street apartment complex and mosque frequented by Somalian immigrants. If carried out, the attack could have killed 100 innocent people.
On appeal, Allen, Wright and Stein say U.S. District Judge Eric Melgren, a George W. Bush appointee, erred by allowing jury members from other districts and failing to instruct jurors about entrapment. In their briefs, the men also contest being designated domestic terrorists, which increased their sentences.
“The district court incorrectly agreed with the government that the threshold for entrapment is ‘relatively high.’ That’s not the standard, the standard is not a relatively high bar. Actually it’s the opposite,” public defender Meredith Esser, representing Patrick Stein, told the 10th Circuit panel Monday. “The defendant only needs enough evidence to create a triable issue, and use of the wrong standard let to the wrong result.”
The jury convicted Stein of conspiracy to use a weapon of mass destruction and conspiracy against civil rights, adding up to a 30-year prison sentence. Melgren sentenced the men in February 2019.
“This court is clear that evidence of persuasion, fraudulent misrepresentation, coercing tactics, promises or reward or pleas based on friendship are the kinds of government inducement that may form the basis of an entrapment defense. And in this case, Mr. [paid FBI informant Dan] Day used all of these tactics with the co-defendants,” Esser argued.
As evidence, Esser noted Day picked the locations of attack. But U.S. Circuit Judge Jerome Holmes pushed back on this point.
“If I’m in a plot to kill the president of the United States, I deal with an informant, and the informant who will allow me to be captured says ‘Why don’t you get him at X point,’ I tell the informant that’s what I want to do, well, the informant is trying to control the situation so he sends me to somewhere where law enforcement is,” the George W. Bush appointee said.
But Esser countered that Day fed the co-defendants false information, including that the Muslim immigrants were funding the Islamic State group, thus pushing the men toward radical actions.
“The court only needs to decide whether or not there was a triable issue, facts from which a reasonable jury could derive reasonable doubt,” Esser said.
For U.S. Attorney Erin Flynn, however, the issue is clear.
“As for entrapment, the defendants failed to offer sufficient evidence of inducement or predisposition and therefore the district court correctly decided that they weren’t entrapped as a matter of law and declined to give the instruction,” Flynn said, outlining the steps Stein, Allen and Wright took to plan the attack.
“Defendants, not Day, hatched this plan and never expressed any doubt about carrying it out,” Flynn told the panel. “Defendants used racial slurs, spewed anti-Muslim rhetoric and repeatedly raised killing Muslims. The defendants attempted to recruit others and when the other KSF members stepped back and said ‘Woah, this isn’t what the militia is about, what are you guys doing?’ the defendants simply sought to shut them up, cut them out, and move on with their plan.”
Public defender Paige Nichols represented Curtis Allen, who was 51 at the time of his arrest and faces 25 years in prison. In his manifesto, Allen explained he believed his actions would “wake up the American people!! Wake them up to our tyranny — tyrannical government.”
Gavin Wright, who is serving a 25-year sentence, was represented by Wichita attorney Kari Schmidt with firm Conlee Schmidt & Emerson.
Twenty-eight viewers tuned into the hearing broadcast on YouTube. Senior U.S. Circuit Judge Paul Joseph Kelly Jr., appointed by George W.H. Bush, and George W. Bush appointee U.S. Circuit Judge Harris Hartz rounded out the panel. The court did not indicate when or how it would decide the case.