United States v. Varnell
20-6040
| 10th Cir. | Dec 13, 2021Background
- Defendant Jerry Drake Varnell exchanged online messages expressing intent and capability to build bombs and to target government institutions; he discussed forming a "team" and committed to violent action in multiple pre-investigation messages.
- Brent Elisens, a former contact, reported Varnell to the FBI, became a paid informant, and re-engaged Varnell, recording meetings and introducing him to an undercover agent ("the Professor," Agent Williams).
- The FBI provided planning assistance, inert materials, and expertise; Varnell helped construct the inert device, drove a van with the inert bomb to the BancFirst building in Oklahoma City, and attempted to detonate it before arrest.
- A federal grand jury indicted Varnell on counts under 18 U.S.C. § 844(i) and 18 U.S.C. § 2332a; he moved to dismiss for outrageous government conduct, which the district court denied.
- At sentencing the court applied the 12-level terrorism enhancement (USSG § 3A1.4), which raised the Guidelines range to life; the court nevertheless varied downward and imposed 300 months.
- On appeal the Tenth Circuit affirmed: it rejected the outrageous-conduct claim and upheld application of the terrorism enhancement based on evidence showing intent to influence or affect government conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Outrageous government conduct (due process) | Varnell: FBI engineered and directed the crime, exploited his mental illness, and coerced participation via informant pressure and government-created opportunity. | Government: Varnell expressed pre-existing violent intent and bomb-making knowledge and voluntarily participated; undercover operations and provision of materials are permissible absent shocking conduct. | Court: Affirmed denial of dismissal — no outrageous conduct; pre-investigation statements and Varnell's active, uncoerced participation (driving, arming, attempting detonation) defeat the defense; no proof FBI knowingly exploited mental illness. |
| Terrorism enhancement (USSG § 3A1.4) | Varnell: Enhancement improper — insufficient evidence he intended to influence/affect government; manifesto was coerced by informant; under Ansberry retaliation-prong requires identification of specific governmental conduct. | Government: Trial evidence (manifesto, prior messages, target selection statements) shows intent to intimidate/influence government; district court relied on multiple indicia, not solely retaliation prong. | Court: Affirmed application — record supports that the offense was calculated to influence/affect government by intimidation or coercion; Ansberry does not defeat enhancement because other prongs supported it. |
Key Cases Cited
- United States v. Russell, 411 U.S. 423 (1973) (outrageous government conduct must shock the universal sense of justice to bar prosecution)
- Hampton v. United States, 425 U.S. 484 (1976) (remedy for police misconduct ordinarily lies in prosecuting officers, not freeing defendants)
- United States v. Dyke, 718 F.3d 1282 (10th Cir. 2013) (summarizes outrageous-conduct principles and totality-of-circumstances analysis)
- United States v. Gamble, 737 F.2d 853 (10th Cir. 1984) (government-conceived undercover schemes not necessarily outrageous)
- United States v. Pedraza, 27 F.3d 1515 (10th Cir. 1994) (government suggestion and provision of supplies do not automatically make conduct outrageous)
- United States v. Wagner, 951 F.3d 1232 (10th Cir. 2020) (discussing the outrageous-conduct defense standard)
- United States v. Ansberry, 976 F.3d 1108 (10th Cir. 2020) (if enhancement based on retaliation, the government conduct allegedly retaliated against must be objectively governmental)