United States v. Stein
985 F.3d 1254
| 10th Cir. | 2021Background:
- In 2016 three members of the Kansas Security Force militia (Stein, Allen, Wright) plotted to bomb the West Mary Street apartment/mosque complex in Garden City, Kansas, targeting Somali Muslim residents and motivated in part by antigovernment and anti-Muslim views.
- An extended FBI investigation used an undercover informant (Dan Day) and an undercover employee posing as an arms dealer; recordings, physical materials for explosives, fertilizer, and a draft manifesto were recovered.
- Defendants were charged with conspiracy to use a weapon of mass destruction (18 U.S.C. § 2332a), conspiracy to violate civil rights (18 U.S.C. § 241), and, as to Wright, making false statements (18 U.S.C. § 1001).
- Pretrial disputes included a Jury Selection and Service Act challenge (petit jurors drawn only from divisions with active courthouses, excluding Dodge City), a multi-day James hearing on admissibility of coconspirator statements under Fed. R. Evid. 801(d)(2)(E), and a rejected request for an entrapment jury instruction.
- The jury convicted all three defendants; the district court applied the §3A1.4 terrorism enhancement, varied downward from life-range guidelines, and imposed sentences of 300–360 months; defendants appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury selection under the Jury Act | Government: selection from active‑courthouse divisions is permissible and not shown to substantially fail the Act | Defs: excluding Dodge City deprived a fair cross‑section and violated 28 U.S.C. §1861 | Challenge was untimely and procedurally barred; even on merits, no substantial failure shown (no cognizable group excluded; randomness preserved) |
| Enttrapment jury instruction | Defs: government inducement by informant/UCE and lack of predisposition required instruction | Govt: defendants originated plan, showed predisposition, and government tactics alone do not establish entrapment | No triable issue of entrapment; court properly refused instruction (inducement and predisposition not shown) |
| Terrorism enhancement (U.S.S.G. §3A1.4) | Defs: enhancement dramatically raised guidelines so higher proof standard or only an upward departure (civilian intimidation) was appropriate | Govt: evidence showed motive also to retaliate/influence government; preponderance standard applies | Enhancement properly applied: preponderance standard adequate; evidence supports calculation to influence/retaliate against government |
| Wright’s individual claims (prosecutorial misconduct; coconspirator statements; false statements charge; cumulative error) | Wright: delayed/transcript inaccuracies, James hearing errors, §1001 inapplicable to interviews, cumulative evidentiary errors warrant reversal | Govt: disclosures timely, transcripts not admitted as evidence, James hearing and admission process proper, §1001 applies to investigator interviews, errors harmless or waived | Court rejected all Wright claims: no prosecutorial misconduct; coconspirator statements admissible; §1001 conviction supported (materiality); no cumulative error |
Key Cases Cited
- Mathews v. United States, 485 U.S. 58 (defines entrapment elements: government inducement and lack of predisposition)
- United States v. Vincent, 611 F.3d 1246 (10th Cir. 2010) (entrapment and inducement precedent)
- United States v. Ortiz, 804 F.2d 1161 (10th Cir. 1986) (foundation required for entrapment instruction)
- United States v. Kamahele, 748 F.3d 984 (10th Cir. 2014) (Jury Act review standards)
- United States v. Contreras, 108 F.3d 1255 (10th Cir. 1997) (strict procedural requirements for Jury Act challenges)
- United States v. Windrix, 405 F.3d 1146 (10th Cir. 2005) (timeliness bar for Jury Act claims)
- United States v. Bailey, 76 F.3d 320 (10th Cir. 1996) (geographic imbalance alone insufficient under Jury Act)
- United States v. Owens, 70 F.3d 1118 (10th Cir. 1995) (requirements for admitting coconspirator statements)
- United States v. Lopez-Gutierrez, 83 F.3d 1235 (10th Cir. 1996) (need for independent evidence of conspiracy at James hearing)
- United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (discussion of proof standard for sentencing factfinding)
- Brogan v. United States, 522 U.S. 398 (false statements to investigators can violate §1001)
- United States v. Williams, 934 F.3d 1122 (10th Cir. 2019) (materiality standard for false statements)