(CN) --- FBI agents began investigating Jerry Drake Varnell after he made disparaging remarks to a Facebook friend leading up to the 2016 election. Throughout 2017, Varnell, then 23, spoke with FBI agents about building a bomb and starting a revolution.
Authorities arrested in August 2017. In February 2019, a jury convicted him 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 inhancement, a federal judge sentenced Varnell to 25 years in prison with a lifetime term of supervised release. Now 27, Varnell has appealed his conviction claiming he would not have attempted to commit the crime if undercover FBI agents hadn’t pressured him into it.
“Instead of accepting the fact that Varnell was not a threat, they decided to make him one and they made a conscious decision to push and when they did that their conduct became outrageous,” Varnell’s attorney, Rachel Jordan of the Oklahoma City firm Behenna Goerke Krahl & Meyer, argued before a 10th Circuit panel on Friday.
Senior U.S. Circuit Judge Stephanie K. Seymour, a Jimmy Carter appointee, requested specific examples of outrageous government conduct.
“The way the informant talked to Varnell throughout the course of this sting operation, he berated him and told him, ‘you need to do this,’” Jordan replied.
Seymour countered that a pot-smoking informant’s actions aren’t exactly government conduct.
“But it is conduct the government was aware and encouraged. Also the government supplied every component needed to commit this crime,” Jordan said. “The undercover agent who is referred to as the Professor told the appellant, ‘I need you to get these things, I need you to get a truck, barrels, gloves, tape and a burner phone,’ and the appellant did not supply one single item.”
U.S. Attorney Matthew Dillon argued Varnell’s failure to supply requested items didn’t reflect hesitancy to commit the crime so much as hesitancy to get caught.
“Besides the goal of wanting to start a revolution or start a civil war and to instigate that by blowing up a building is that the defendant had one clear thing he wanted do through this crime, which was to not get caught,” Dillon said. “He told the undercover agent at the time, ‘I don’t have a problem dialing the number [to detonate the bomb], I just don’t want to use my phone to do it.’”
He added: “We have to view this in the context of totality of the circumstances. We have to look at the crime and what this person is talking about doing. We’re not dealing with an individual who’s selling small quantities of drugs on a street corner, we’re talking about someone who wanted to detonate a thousand-pound device, as he described it, ‘What the Oklahoma bomber went with.’”
Seymour questioned how blowing up a bank amounts to government retaliation.
“Doesn’t there have to be some specific government conduct that he’s retaliating against?” Seymour asked. “What does he object to?”
Dillon painted a broad picture.
“Quite simply he objects to the existence of the government, he wants a revolution, he wants a civil war and he hated both sides of the government at election time,” Dillon said. “In his own words he wanted this to start a revolution.”
Seymour pressed for details.
“It seems general and vague to me,” Seymour said. “Is it sufficient for the terrorism charge?”
In rebuttal, Jordan warned of dangerous precedent.
“When the government creates crime for the purpose of prosecuting it, when it creates crime that would not otherwise occur, it does not deter misconduct, it doesn’t protect society and it doesn’t rehabilitate that person,” Jordan said. “If this is accessible government conduct then what meaningful boundaries on police power are there?”
George W. Bush-appointed U.S. Circuit Judge Harris L. Hartz presided over the hearing and Clinton-appointed Senior U.S. Circuit Judge Michael R. Murphy rounded out the panel. Due to the Covid-19 pandemic, the hearing was broadcast over YouTube to 15 viewers.
The court did not indicate when or how it will decide the case.Follow @bright_lamp
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