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1 Michael C. Ormsby United States Attorney 2 Eastern District of Washington Joseph H. Harrington 3 Thomas O. Rice Assistant United States Attorneys 4 Post Office Box 1494 Spokane, WA 99210-1494 5 Telephone: (509) 353-2767 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON UNITED STATES OF AMERICA, Plaintiff, vs. KEVIN WILLIAM HARPHAM, Defendant. ) ) ) ) ) ) ) ) )

CR-11-042-JLQ In Camera Request of the Parties for the Court to Accept the Plea Agreement

Plaintiff, United States of America, by and through Michael C. Ormsby, United States Attorney for the Eastern District of Washington, and Joseph H. Harrington and Thomas O. Rice, Assistant United States Attorneys for the Eastern District of Washington, and Defendant KEVIN WILLIAM HARPHAM, and the Defendants counsel, Roger J. Peven, Kimberly A. Deater, and Kailey E. Moran, submit the following request that the Court accept the Plea Agreement in this case. BACKGROUND On January 17, 2011, at approximately 9:30 a.m., an improvised explosive device (IED) was discovered at the northeast corner of Main and Washington Streets in Spokane, Washington, prior to, and along the planned route of, the Martin Luther King Jr. Day Unity March. The IED, contained within a backpack, In Camera Request of the Parties for the Court to Accept the Plea Agreement- 1
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1 consisted of a steel pipe approximately 6 inches long with a 3 inch diameter, itself 2 containing a charge and shrapnel (ie: fishing weights coated with brodifacoum, an 3 anticoagulant), all enclosed within a wooden box and included a power or 4 triggering system. 5 The backpack was discovered by some day laborers hired by the City of 6 Spokane to pick up trash around the Spokane Convention Center. The Spokane 7 bomb squad immediately responded and rendered the device safe before any 8 detonation. The Federal Bureau of Investigation led an extensive investigation to 9 determine who was responsible for making and placing the device. By March 9, 10 2011, a Kevin William Harpham was identified, arrested and charged. 12 Harpham with four crimes, Count 1, Attempted Use of a Weapon of Mass 13 Destruction in violation of 18 U.S.C. 2332a(a)(2); Count 2, Possession of an 14 Unregistered Destructive Device in violation of 26 U.S.C. 5861(d); Count 3, 15 Attempt to Cause Bodily Injury with an Explosive Device Because of Actual or 16 Perceived Race, Color, and National Origin of Any Person, in violation of 18 17 U.S.C. 249; and Count 4, Using a Firearm in Relation to a Crime of Violence, in 18 violation of 18 U.S.C. 924(c)(1)(B)(ii). 19 On September 7, 2011, Kevin William Harpham, age 37, entered his guilty 20 plea to Counts 1 and 3 of the Superseding Indictment. Count 1, which charges 21 Attempted Use of a Weapon of Mass Destruction in violation of 18 U.S.C. 22 2332a(a)(2), carries a maximum penalty of any term of years or life term of 23 imprisonment; not more than a $250,000 fine; and any term of years or life term of 24 supervised release. Count 3, which charges Attempt to Cause Bodily Injury with 25 an Explosive Device Because of Actual or Perceived Race, Color, and National 26 Origin of Any Person in violation of 18 U.S.C. 249, carries a maximum penalty 27 of not more than a ten-year term of imprisonment; not more than a $250,000 fine; 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 2
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11 Superseding Indictment was filed on April 21, 2011 charging Kevin William

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1 and not more than a three-year term of supervised release. The United States 2 agreed to move for the dismissal of Counts 2 and 4 at the sentencing hearing. 3 The parties are recommending to the Court that, pursuant to Fed. R. Crim. 4 11(c)(1)(C), the Court impose a term of imprisonment within a range of twenty5 seven (27) years to thirty-two (32) years, to be followed by a life term of 6 supervised release as the appropriate disposition of this case. The Defendant has 7 the option to withdraw from the Plea Agreement if the Court imposes a sentence 8 of greater than a thirty-two (32) year term of imprisonment. The United States has 9 the option to withdraw from the Plea Agreement if the Court imposes less than a 10 twenty-seven (27) year term of imprisonment or less than a life term of supervised 11 release. 1 12 13 14 RULE 11 AND THE SENTENCING STATUTES The Guidelines, which Booker made effectively advisory, 543 U.S. at 245,

15 125 S.Ct. 738, should be the starting point and the initial benchmark, but district 16 courts may impose sentences within statutory limits based on appropriate 17 consideration of all of the 3553(a) factors, subject to appellate review for 18 reasonableness, Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 19 L.Ed.2d 445. Of course, in this Rule 11(c)(1)(C) context, the district court is 20 entrusted with the discretion to accept or reject plea agreements. In the context of 21 charge bargains, that is dismissing charges in return for a plea to one or more 22 counts, the Ninth Circuit observed: 23 24 25 26
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Because Rule 11 allows district courts to assess the wisdom of plea bargains, this power must be exercised reasonably, and [w]hen a court establishes a broad policy based on events unrelated to the individual case before it, no discretion has been exercised. Second,

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The imposition of any fine, restitution, and conditions of supervised

28 release are not part of the Rule 11(c)(1)(C) nature of this Plea Agreement. In Camera Request of the Parties for the Court to Accept the Plea Agreement- 3
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we noted that separation of power principles require the judiciary and executive to remain independent. Because deciding which charges to bring is a matter of prosecutorial discretion and because categorical limitations on charge bargains may force prosecutors to bring charges they ordinarily would not, or to maintain charges they would ordinarily dismiss, such limitations impermissibly intrude upon the executive's exclusive domain. Third, the Federal Rules require courts to respect prosecutorial charging decisions by granting leave to dismiss charges unless the dismissal is clearly contrary to manifest public interest. Guided by these three considerations, and by a need to ensure that judicial discretion is exercised with due regard for prosecutorial independence, we held that district courts must review individually every charge bargain placed before them.

8 In re Morgan, 506 F.3d 705, 710 (9th Cir. 2007)(citations omitted). As well, the 9 Ninth Circuit explained the role of the district court with respect to sentencing 10 bargains: 11 12 13 14 16 17 18 SENTENCING GUIDELINES The starting point to sentencing is the correct calculation of the sentencing Rule 11 vests district courts with considerable discretion to assess the wisdom of plea bargains, to which attaches a concomitant responsibility to exercise that discretion reasonably. We accordingly hold that district courts must consider individually every sentence bargain presented to them and must set forth, on the record, the court's reasons in light of the specific circumstances of the case for rejecting the bargain.

15 In re Morgan, 506 F.3d 705, 712 (9th Cir. 2007).

19 guidelines. In this case the parties stipulated to the guidelines calculation in the 20 plea agreement. In summary, that guideline calculation is as follows: 21 22 24 25 (a.) Base Offense Level The Base Offense Level for Attempted Use of a Weapon of Mass (b.) Specific Offense Characteristics

23 Destruction is level 28. See U.S.S.G. 2M6.1(a)(2). The United States contends that the offense was tantamount to attempted

26 murder resulting in an increase in the base offense level to 33 by way of a cross 27 reference to U.S.S.G. 2A2.1(a)(1). See U.S.S.G. 2M6.1(c)(2). 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 4
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An upward departure may be warranted since the offense created a

2 substantial risk of death or serious bodily injury to more than one person. See 3 U.S.S.G. 2A2.1, comment. (n.2). 4 5 (c.) Adjustments to Offense Level The offense level should be increased three levels because the intended

6 victims were selected based on the actual or perceived race, color, national origin, 7 or ethnicity of any person. See U.S.S.G. 3A1.1(a). 8 9 (d.) Terrorism Adjustment Inapplicable The terrorism adjustment, which provides for an additional 12 level increase

10 in the adjusted offense level and an automatic increase in the criminal history to 11 category VI, is inapplicable because the offense was not calculated to retaliate 12 against government conduct or to influence or affect the conduct of government by 13 intimidation or coercion. See U.S.S.G. 3A1.4(a) and (b). 14 The United States contends that an upward departure would be warranted 15 where the motive was to intimidate or coerce a civilian population. See U.S.S.G. 16 3A1.4, comment. (n.4). Such upward departure shall not exceed the top of the 17 guideline range that would have resulted if the adjustment under this guideline 18 would have applied. Id. 19 20 (e.) Multiple Count Adjustment (Grouping) Since the offense level for the civil rights crime, Count 3, is the offense

21 guideline applicable to the underlying offense (see U.S.S.G. 2H1.1(a)(1)), and is 22 supported by the very same act or transaction as Count 1, the counts are grouped 23 for purposes of the Guidelines computation. See U.S.S.G. 3D1.2(a). 24 Accordingly, there are no further multiple count adjustments. 25 26 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 5
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(f.)

Acceptance of Responsibility

The United States has conditionally agreed to recommend a two-level

27 reduction to the adjusted offense level for acceptance of responsibility and move

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1 for a one-level reduction for timely entering a plea of guilty. See U.S.S.G. 2 3E1.1(a) and (b). 3 4 6 7 (g.) Criminal History Although the parties have made no agreement concerning Defendants (h.) Total Offense Level and Sentencing Options

5 criminal history, the parties are aware of no prior criminal conduct. Based on the uncontroverted sentencing guideline calculation set forth

8 above, the Defendant has a total offense level 33 with a criminal history category 9 I, resulting in an advisory guideline range of 135-168 months. 10 However, there are two invited departure provisions. First, if the offense 11 created a substantial risk of death or serious bodily injury to more than one person, 12 an upward departure may be warranted. See U.S.S.G. 2A2.1, comment. (n.2). 13 There is no further quantification provided by this guidelines invited departure. 14 A departure as small as a nine level increase would result in a sentencing range of 15 360 months to life under the guidelines. 16 Second, the United States contends that an upward departure would be 17 warranted here because the motive was to intimidate or coerce a civilian 18 population. See U.S.S.G. 3A1.4, comment. (n.4). In such cases an upward 19 departure would be warranted, except that the sentence resulting from such a 20 departure may not exceed the top of the guideline range that would have resulted if 21 the adjustment under this guideline had been applied. Id. If this invited departure 22 were to apply, Defendants maximum sentence would be capped at life, just like 23 the statute itself. 24 25 27 28 18 U.S.C. 3553(a) The factors to be considered in imposing a sentence are set forth in 18 The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. In Camera Request of the Parties for the Court to Accept the Plea Agreement- 6
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26 U.S.C. 3553(a), which provides, inter alia:

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The court, in determining the particular sentence to be imposed, shall consider-(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed-(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; 2 (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for-(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines-* * * (5) any pertinent policy statement

Except that the Supreme Court held in Tapia v. United States, 131 S.Ct.

24 2382, 2393 (2011), that 18 U.S.C. 3582(a) rejects imprisonment as a means of 25 promoting rehabilitation (a court may not impose or lengthen a prison sentence to 26 27 enable an offender to complete a treatment program or otherwise to promote 28 rehabilitation). In Camera Request of the Parties for the Court to Accept the Plea Agreement- 7
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*** (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. The nature and circumstances of the offense and the history and characteristics of the defendant. The defendant pled guilty to the most serious charge returned by the Grand

6 18 U.S.C.A. 3553.

10 Jury. The charges pled to in the Plea Agreement reflects the most readily provable 11 conduct. While the nature and circumstances of the offense are extremely serious, 12 no one was injured and no property damaged. Furthermore, the defendant has no 13 prior criminal history and is a veteran of the Armed Forces. The Plea Agreement 14 therefore strikes an appropriate balance between the seriousness of the offense and 15 the fact that the defendant is a first offender. 16 17 18 To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense. As reflected in the advisory guideline calculation, this is a serious crime.

19 To serve a 27 to 32 year sentence for an attempted crime sends a message, loud 20 and clear that racism based violent crimes will not be tolerated in a civilized 21 society. To be released from prison when defendant is in his sixties after having 22 spent nearly half of his life and more than half of his adult life behind bars will 23 promote respect for the law and provide just punishment. 24 25 27 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 8
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To afford adequate deterrence to criminal conduct. A sentence of between twenty-seven and thirty-two years is a long term of

26 incarceration and affords adequate deterrence for hate motivated crimes.

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To protect the public from further crimes of the defendant. The public is protected from the defendant through the long term of

3 incarceration. When the defendant is released, a lifetime term of Supervised 4 Release is contemplated which will provide oversight of the defendant and his 5 activities. 6 A sentence must be sufficient, but no greater than necessary to comply with 7 the purposes of sentencing. In addition, these additional considerations support 8 acceptance of the Plea Agreement: 9 10 Public Accountability Public accountability and acceptance of responsibility has been

11 demonstrated by the defendant in the change of plea hearing. The defendant 12 publicly accounted for his actions in the Counts for which he entered pleas of 13 guilty. The Plea Agreement ensures satisfaction of the publics interest in this 14 prosecution. The Eastern Washington Community will have resolution and 15 accountability for these crimes. The Plea Agreement acknowledges that such 16 crimes will be punished severely. 17 18 Finality The Plea Agreement focused on the most readily provable conduct and

19 comprehends all of the factual and legal elements to sustain a binding, final 20 judgment of guilty. Members of the Spokane Community and elsewhere have 21 waited for a resolution of this matter. The Plea Agreement provides closure by a 22 public acknowledgment of guilt followed by swift and severe punishment. There 23 will be no trial with the associated litigation risks, nor appeal with protracted 24 litigation involving the underlying facts and circumstances. 25 26 Expediency These crimes occurred on January 17, 2011. Acceptance of the Plea

27 Agreement provides assurances to the community that the defendant was 28 identified, charged, pled guilty and was sentenced within one year of the event. In Camera Request of the Parties for the Court to Accept the Plea Agreement- 9
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1 The community will be assured that crimes of this nature will be investigated 2 completely, prosecuted swiftly, and sentenced accordingly. 3 4 5 CONCLUSION Accordingly, the parties respectfully request the Court accept the plea

6 agreement and sentence the Defendant according to the terms contained therein. 7 The United States will argue that the Court should impose a thirty-two (32) year 8 term of incarceration and the Defendant will argue that the Court should impose a 9 twenty-seven (27) year term of incarceration. 10 11 12 14 15 Michael C. Ormsby 13 United States Attorney s/Joseph H. Harrington Respectfully submitted this 1st day of November, 2011.

Joseph H. Harrington 16 Assistant United States Attorney 17 s/Thomas O. Rice 18 Thomas O. Rice Assistant United States Attorney 19 20 21 s/ Roger J. Peven agreed to by telephone __________________________ 22 Roger J. Peven Attorney for the Defendant 23 s/ Kimberly A. Deater agreed to by telephone 24 __________________________ Kimberly A. Deater 25 Attorney for the Defendant 26 s/ Kailey E. Moran agreed to by telephone __________________________ 27 Kailey E. Moran Attorney for the Defendant 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 10
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I hereby certify that on November 1, 2011, I electronically filed the

2 foregoing with the Clerk of the Court using the CM/ECF System which will send 3 notification of such filing to the following, and/or I hereby certify that I have 4 mailed by United States Postal Service the document to the following non5 CM/ECF participant(s): 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Camera Request of the Parties for the Court to Accept the Plea Agreement- 11
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Mr. Roger Peven Ms. Kimberly Deater Ms. Kailey E. Moran Federal Defenders of Eastern Washington and Idaho 10 North Post, Suite 700 Spokane, Washington 99201 s/Joseph H. Harrington Joseph H. Harrington Assistant United States Attorney