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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA, ) Docket No. CR05-5828FDB

)

Plaintiff, ) Tacoma, Washington

) June 19, 2008

vs. ) 9:10 A.M.

)

BRIANA WATERS, )

)

Defendant. )

)

TRANSCRIPT OF SENTENCING

BEFORE THE HONORABLE FRANKLIN D. BURGESS

SENIOR UNITED STATES DISTRICT COURT JUDGE.

APPEARANCES:

For the Plaintiff: MARK N. BARTLETT

ANDREW C. FRIEDMAN

Assistant United States Attorney

700 Stewart Street, Suite 5220

Seattle, Washington 98101-1271

For the Defendant: NEIL M. FOX

Cohen & Iaria

1008 Western Ave., Suite 302

Seattle, Washington 98104

PROBATION OFFICER: KALEN THOMAS

Court Reporter: JULAINE V. RYEN

Union Station Courthouse, Rm 3131

1717 Pacific Avenue

Tacoma, Washington 98402

(253) 882-3832

Proceedings recorded by mechanical stenography, transcript

produced by Reporter on computer.
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(Defendant present.)

THE CLERK: This is in the matter of United States of

America versus Briana Waters, Cause No. CR05-5828FDB.

Counsel, please make your appearance for the record.

MR. BARTLETT: Good morning, Your Honor. Mark

Bartlett, Andrew Friedmann, and Ted Halla for the United

States.

MR. FOX: Good morning, Your Honor. Neil Fox, on

behalf of Ms. Waters, who is present.

THE COURT: I notice the absence of Mr. Bloom.

MR. FOX: Right.

THE COURT: I have received a letter from him saying

that he wouldn't be here, and that he wouldn't be here at the

request of Ms. Waters.

Do you agree with that, Ms. Waters? Do you want to

proceed in his absence?

THE DEFENDANT: Yes, please.

THE COURT: All right. And the matter is on for

sentencing this morning, and the Court has reviewed,

obviously, as you can see by the load I brought in, a lot of

documents involved in this case. It seems like there were

letters reaching in the area of past 250, that I recall -- a

few duplications in there -- saying nice things about Ms.

Waters, as well as speaking of things that it seemed like they

knew very much about her. I don't know how they got the
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information, but they were all speaking on her behalf.

So I've had a chance to read those, and the other filings

in the matter, along with the presentence report prepared by

probation. I've had the benefit of that and the briefs of the

sentencing memorandum filed by both counsel in the matter to

assist the Court in making a decision here in passing a fair

sentence.

Now, have I not mentioned something that I should have had

the special benefit of in order to proceed here today?

MR. BARTLETT: No, Your Honor.

MR. FOX: No.

THE COURT: All right. And Mr. Fox, you've had the

benefit of the presentence report, to go through that with Ms.

Waters?

MR. FOX: Yes, Your Honor. As I indicated in our

memo, we had some objections that we brought to the Court's

attention.

THE COURT: All right. And the Court has read those

objections. I don't know if we need to amplify on those in

any way. Is there anything else to be said about that? Any

factual situation involved in the report other than as they

may go to calculations under the guidelines, anything along

that line?

MR. FOX: Well, Your Honor, we have some objections

factually which I will address in the course of my
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presentation.

THE COURT: All right. But the presentence, you've

had a chance to go through that with Ms. Waters, so we're

ready for sentencing at this time?

MR. FOX: Yes.

THE COURT: I will hear from the government first.

MR. BARTLETT: Your Honor, I think the Court has had

a chance to read some of the written victim statements by

people who were impacted by this crime. One of the

individuals from the University of Washington has come down

today and asked whether or not she could be permitted to make

just a brief statement to the Court. It's Linda Chalker

Scott. I would ask her to come up and make a brief statement

to the Court.

THE COURT: Let me hear from counsel first on this

matter before I hear from any victims. I believe this person

testified in the course of the trial?

MR. BARTLETT: No, that was Sarah Reichard, Your

Honor.

THE COURT: Okay. All right, I will hear from any

victim at a later time, but right now I will hear from

counsel.

MR. BARTLETT: Your Honor, today we are here to

sentence Briana Waters. She's 32 years old. She was

convicted by a jury of her peers after committing one of the
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most serious arsons to occur in the district in the last

quarter century.

The defendant's actions caused not only millions of

dollars in damages to one of the greatest public universities

in the world, the University of Washington, but it, as the

Court has heard both at trial and in the written submissions,

impacted many, many victims.

Ironically, defendant's actions -- self-described as a

noble protest to help mother earth -- actually had totally the

opposite effect. There was no genetic engineering being

conducted by Professor Toby Bradshaw. The fire did nothing

but destroy some of the rarest plants, some that are

irreplaceable. It destroyed hundreds of rare, irreplaceable

books. It destroyed and set back innumerable research

projects, all of which were aimed at helping the environment.

Despite the seriousness of her crime and the huge impact

this arson had on the community, she stands before this Court,

spectacularly unrepentant, self-indulgent and unreflective.

In fact, the defendant continues to use every possible means

to avoid accepting any responsibility for her actions,

choosing instead to blame everyone but herself for her current

predicament. Why? Because Ms. Waters has failed to ever

grasp one of the most fundamental lessens of being an adult:

actions have consequences, decisions carry repercussions.

This defendant chose to become best friends with Bill
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Rodgers, a person who devoted his entire life to planning and

carrying out arsons and other violent attacks and perfecting

how to build incendiary bombs. This defendant chose to get

and purchase a cell phone and pay for that cell phone for Bill

Rodgers so he could remain anonymous as he carried out his

illegal acts.

This defendant chose to help arrange and find a location

at Evergreen State College so the coconspirators of the double

whammy could meet in safety and anonymity.

This defendant chose to manipulate her cousin and close

friend, Robert Corrina, so a safe car could be obtained for

this arson. This defendant chose to plan the arson so

carefully that she even stole Robert Corrina's cordless phone

on the night of the arson so police could not be inadvertently

notified of her absence.

The defendant chose not to cooperate with law enforcement

throughout this activity. Instead, continued to claim that

she was innocent.

The defendant chose Bob Bloom to represent her.

The defendant chose to engage in what could only be

described as total character assassination with regard to

anyone that might hold her accountable for her prior actions:

Jennifer Kolar, Lacey Phillabaum, Special Agent Ted Halla,

Special Agent Tony Torres, AUSA Andrew Friedmann, even this

Court.
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Defendant chose to get on the stand at trial and commit

perjury time and time again.

And finally, the defendant chose to continue this charade,

even after conviction, choosing to portray herself as a noble

idealist wrongly convicted by a corrupt judicial system, in

effect a martyr.

Now, on the day of reckoning when she is about to face the

consequences of her many decisions that she's made over the

past years, she comes before this Court and begs for herself,

for mercy. To save her, she wants you, Your Honor, to save

her from her choices. The sense of arrogance and entitlement

that underlies this request would almost be comical if the

situation weren't so serious.

What is the proper sentence for this defendant?

Supervising United States Probation Officer Kalen Thomas

prepared a draft presentence report. He looked at input from

both the United States and from the defendant. He talked the

matter over with senior members of the United States Probation

Department here in this district, and they finalized her

presentence report. After fully staffing and venting this

individual, the U.S. Probation Office for the Western District

of Washington has recommended that this defendant receive a

term of imprisonment of ten years.

The United States strongly joins that recommendation, that

this Court impose a sentence of no less than ten years
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imprisonment on this defendant. It is the absolute lowest

sentence of imprisonment that will accomplish the goals set

forth by the Supreme Court in its Booker decision and codified

in Title 18, Section 3553.

What does the Court and the Code tell you? A sentence

must reflect, first, the seriousness of the offense; second,

it must promote respect for the law; third, it must provide a

just punishment for the specific crime; fourth, it must

provide adequate deterrence to future criminal conduct; and

finally, it must protect the public from further crimes from

this defendant.

In attempting to arrive at a sentence that "reflects the

seriousness of the offense and promotes respect for the law,"

obviously one of the most important factors that not only this

Court, but all federal courts, consider in arriving at a

sentence is the sentencing guidelines. After Booker, they are

not mandatory, but they are still critical factors for the

Court to consider. They provide every district court in the

United States an objective guidepost as to how other

defendants that have committed similar crimes should be

treated.

As calculated by both the United States Probation

Department and our office, the defendant's sentencing

guideline range is 360 to 480 months, 30 to 40 years of

imprisonment. That is the place, 30 to 40 years of
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imprisonment, where this Court should start in analyzing what

is the proper sentence for this defendant.

The probation office and the government's joint

recommendation of a ten-year term of imprisonment is one third

from the bottom of that applicable sentencing guideline range.

By any measure, our ten-year recommendation is extremely

lenient.

I am not going to go into a detailed discussion of all the

sentencing guideline calculations; that has been hashed out in

detail in the written submissions, and I'm not going to waste

the Court's time in going through it. I do want to mention

one thing, however, in regard to the terrorism enhancement.

Judge Aiken, in Oregon, has considered all the arguments

raised by both the United States and by the defendant. In

ruling in Oregon in her very detailed memorandum, Judge Aiken

indicated and, in fact, decided that the defendants involved

in the Jefferson Poplar crime should in fact receive the

terrorism enhancement, and they did.

But the Court is well aware, the Jefferson Poplar crime,

if anything, might be argued less applicable in regard to

terrorism enhancement because that was a private farm. In

this case, the University of Washington arson involved a

public university, a government institution. It is clear that

Judge Aiken, and I urge the Court, this Court, also, should

apply the terrorism enhancement to individuals involved in the
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Center for Urban Horticulture arson.

In addition to looking at the sentencing guidelines,

obviously this Court will also look at, as set forth in the

Booker decision and in 3553(a), what is a just punishment for

the crime. One of those factors will be how a similarly

situated defendant has been treated.

The most analogous defendant for this Court to consider is

Eric McDavid. On May 8th, a little over a month ago, in the

Eastern District of California, Judge Morrison England

sentenced Eric McDavid to a term of imprisonment of 19 years

and seven months. That sentence was based on Mr. McDavid's

participation in the conspiracy, in the Earth Liberation Front

conspiracy, to commit arson.

By almost any objective analysis, McDavid's crime was less

serious than this defendant's. It was a serious crime. It

was a conspiracy to destroy a number of government buildings

and institutions, but it was never completed. No bomb was

actually set, no building was actually destroyed.

And second, although Mr. McDavid chose to go to trial and

asked the government and demanded that the government prove

his guilt beyond a reasonable doubt, he did not get on the

stand and commit perjury.

That case and his actions in that case and the crime in

that case stand in stark contrast to Ms. Waters' situation,

where a building was destroyed, a multi-million dollar
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building, in an urban setting, and she did get on the stand,

and she did commit perjury, time and time again. And there's

a price to pay for that action.

In addition to looking at Eric McDavid, the Court will

also, obviously, look at some of the codefendants in this

case. I would suggest to the Court that the most analogous

and applicable codefendants for this Court to consider are the

sentences imposed by Judge Aiken on Joyanna Zacher and Nathan

Block. In many ways they are the defendants that most closely

resemble this defendant. Both Block and Zacher were from

Olympia, both were friends of Bill Rodgers. Both were

involved in the double whammy, although in Zacher's and

Block's case they were involved in the Jefferson Poplar arson

as opposed to the University of Washington arson.

Unlike this defendant Zacher and Block pleaded guilty,

admitted their criminal conduct, and accepted responsibility

for their actions.

Unlike this defendant, Zacher and Block also met with law

enforcement, and although they refused to name other names,

they fully and in detail described their own criminal conduct.

They received sentences of 92 months from Judge Aiken.

In looking at the next criteria set forth in Booker and in

Title 18, fashioning a sentence that affords adequate

deterrence to future conduct, this Court must, of course, look

at the specific crime that was committed.
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This arson was not burning a horse corral in a rural

setting, such as at Susanville. It did not destroy pole sheds

on a privately owned farm in rural Oregon, such as Jefferson

Poplar. This crime was different. This crime destroyed a

multi-million dollar facility in a densely populated urban

area. It destroyed a teaching and research facility at a

public institution. Firefighters were put in serious risk of

harm. There were hundreds of victims of this crime:

Individuals who were employed at the Center for Urban

Horticulture; the graduate students who were trying to finish

their masters and doctorates, who saw their academic careers

either delayed or in some cases totally ruined; the

undergraduate students who went to class at the specific

facility; and finally, the citizens of the State of Washington

are victims. It is the taxpayers in this state that had to

foot the 6.2 million dollar bill that was required to rebuild

this institution because of this defendant's actions.

It took from May 21st, 2001, the day of the arson, until

January of 2005, when the new center was opened, for the many

victims in this case to have their lives returned to some

semblance of normality.

The librarian of the center, Brian Thompson, wrote a

letter to the Court and he described how over a thousand books

were destroyed, irreplaceable books. He further described how

he personally spent the next years doing grunt work trying to
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salvage books and articles as opposed to the work that he was

trained to do, the research work he was supposed to be doing.

Sarah Reichard, a professor at the school, also wrote to

the Court, and she summed it up better than anything I could

ever say: "The people who worked at the Center for Urban

Horticulture are without exception good people whose main

concern is doing something positive for the environment. This

violent act devastated us and from which we, as individuals,

will never fully recover. They took years away from us and

changed how we look at our fellow human beings."

Hopefully, after hearing from the victims at trial and

reading their statements to the Court, I will never have to

again endure the repeated statements made prior by this

defendant and her supporters that this was nothing but a

property crime, that no one was really hurt.

In addition to looking at specifics of the crime, I think

the Court has to consider the motive underlying this crime.

It's a crime of terrorism, and terrorism is different. The

defendant and her partners held a joint role. They were

attempting to intimidate and coerce the government and the

universities into adopting their extremist views. In this

instance, they wanted to force the government and universities

to stop all work on genetic engineering. I'm not speculating

on that. The Earth Liberation Front communiqué that was

issued after this arson said, described it in detail:
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"As long as universities continue to pursue this reckless

science, they run the risk of severe losses. Our message

remains clear: We are determined to stop genetic engineering.

From the torching of Catherine Ive's office at Michigan State

University, to the total incineration of GE seeds at the D &

PL warehouse in Visalia, California, the Earth Liberation

Front is growing and spreading. As the culture of domination

forces itself into our very genes, wild fires of outrage will

continue to blaze."

Terrorism is the antithesis of America. It is the polar

opposite of how democracy works in a free and open society.

Terrorists, instead, attempt to impose their elitist views

through the use of violence and intimidation.

It is the arrogance of a bitter minority trying to impose

their will and rationalizing it by saying the end justifies

the means. It makes their crimes more serious and more

dangerous. As a result, terrorists are treated more harshly

by the law, and they should be.

I'm not going to spend a great deal of time rebutting the

many arguments raised in defense sentencing memo. I will note

that the argument that this Court can avoid a mandatory

minimum five-year sentence, as described in the legal

argument, is about as helpful as their other 30 motions that

have been raised and denied by this Court.

There are some arguments, however, that demand response.
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First and foremost is the assertion that appears at page 16 of

the defendant's sentencing memorandum. At that page they make

the following statement: "The conviction was the result of a

series of errors at trial and a climate of fear."

This defendant was convicted because the government put on

overwhelming evidence of her guilt. We introduced hundreds of

pieces of physical evidence. We put on compelling testimony

from witnesses that was corroborated by physical evidence.

Her guilt was proven beyond all doubt. That's why she's

convicted. Not because there was fear in this courtroom or in

this jury or that there were any errors. She was convicted

because she's guilty.

Jennifer Kolar identified this defendant in December of

2005 out of the blue. She was on no one's radar screen, and

there has never been even a hint of an explanation as to why

Jennifer Kolar would make up this defendant's participation.

Weeks later, Lacey Phillabaum, totally independent of

Jennifer Kolar, also identified this defendant's participation

and describes how she participated.

Totally independent, two people involved in the

conspiracy, neither of them talking to each other, both

identified the defendant.

Even more damning, during this very first interview, Lacey

Phillabaum tells us something no one had ever heard, that this

defendant not only helped arrange for meetings, provided a
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safe house for where the incendiary bombs were made, but she

had her aunt get the car that was used to transport the people

to the arson. After almost a year of work, what do we find?

The physical evidence that shows that's exactly right.

And in addition, Robert Corrina, her cousin, her friend,

comes in and tells this Court not only did he get the car at

this defendant's request, but all the lies and deceit that she

did to try to hide her activity.

Phone records show how close Bill Rodgers and her were.

Not only did she buy his cell phone, but he talked to her more

than anybody else, according to the phone records. And what

is most especially aggravating, is not only is this the

evidence that we put on at trial that proved beyond all doubt

her guilt, but there was a lot of other evidence that was not

admissible at trial that also showed her guilt. I am just

going to give you one example.

One of the coconspirators in Oregon was Daniel McGowan.

Daniel McGowan was part of the group that said I'm going to

plead guilty, I'm going to accept responsibility for my crime,

and I will tell you what I did with regard to these actions,

but I'm not going to name names. That was his deal in Oregon

he cut.

I was at the debriefing for Daniel McGowan, and what does

he say? He describes in detail his actions, and eventually he

talks about his activity with regard to the double whammy. He
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was one of the participants in the Jefferson Poplar arson. He

describes coming to Olympia. He says that one of the other

participants, one of the participants in the U.W. arson,

arranged for a clean room where the incendiary bombs were

made. And, in fact, I, Daniel McGowan, went to this room and

I made the incendiary bombs. And where was the room? It was

in a garage that was separate from the house where this was

arranged, and I and other people went back there and in this

clean room made the bombs.

The exact description of Lacey Phillabaum's clean room

where this defendant lived. And they know this exists. And

yet they continue to come before this Court, even now, to

claim, oh, I'm innocent.

By falsely protesting her innocence and by continually

alleging gross government and judicial misconduct, defendant

fuels an environment where additional crimes, such as the

Street of Dream arsons that occurred during jury

deliberations, will continue.

Briefly addressing the defendant's main arguments.

She says that I really had a really small role in this

arson so I should have a reduction. Mitigating role in the

offense.

That just simply factually isn't accurate. With regard to

this specific arson, she actually had a much greater role than

either Lacey Phillabaum or Jennifer Kolar.
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Now, clearly, Kolar was involved in many more arsons and

involved a longer period of time. But with regard to

mitigating role in the offense, all we're looking at is this

arson, the Center for Urban Horticulture arson. Her

involvement was much more than either Phillabaum or Kolar.

Second, defense says that she should be given a break

because of family circumstances. The defendant loves her

daughter. There's no argument with regard to that. She's

very devoted to her daughter. There's no argument with regard

to that. Is it some kind of an extraordinary and unique

relationship? Does Mr. Fox really think that this defendant

loves her daughter more than he loves his two daughters? More

than I love my two daughters? I doubt it.

Any sentencing of a mother of a young child is incredibly

hard and it involves a very, very severe imposition on that

daughter, but it's nothing unique and it's nothing

extraordinary.

Finally, defendant indicates that she has a lifetime of

good works the Court should consider. The defendant is a

person who enjoys playing and teaching the violin. By all

accounts, she's incredibly talented. She's given benefit

concerts in the Bay Area. She provides violin lessons.

She's not Mother Teresa. She's not out trying to cure

cancer. She's not even helping the homeless. What she is

doing is what thousands and hundreds and millions of people do
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every year. They live in their community, they belong to the

PTA, they go to community meetings, and they try to raise

their kids. Extraordinary? It's ordinary.

Now, she has collected a large number of letters in

support. The problem with those letters is that they are

based on a lie. The lie is: I'm an innocent person who was

wrongly convicted, and for goodness sake, please write and

tell the Court and help me.

Victoria Canby's letter captures the common theme that

appears in many of the letters:

"Honorable Judge Franklin Burgess:

"My friend Briana Waters has been tried and convicted of

arson at the University of Washington. I and many others who

know Briana are certain of her innocence."

Jessica Bottomley's letter:

"I have known Briana Waters for 8 years now... I know from

the core of my being that she did not commit these crimes she

has been accused of... I humbly ask that you please take a

moment to listen to my heart, to listen to the many

outstanding citizens who are standing up to assure you that

you have the wrong person in prison for these crimes."

If all the letter writers knew the truth, that in fact

this defendant had committed the arson, that she not only

committed the arson but chose to get on the stand and lie

under oath and that she engaged in the most guttural attacks
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against any witness who dared to try to help hold her

accountable, I would submit that the huge majority of these

letters wouldn't have been written.

The support is based on a house of cards that doesn't

stand even the most cursory examination.

There are two minor matters I want to bring up to the

Court before I conclude.

The first is the defendant has asked that you recommend

that the Bureau of Prisons assign her to FCI Dublin. In all

honesty, in 25 years, I don't ever remember even commenting on

a designation, but in this instance, my understanding is that

the Bureau of Prisons is trying to keep all defendants

separate involved in this conspiracy.

We brought Suzanne Savoie up from Dublin to testify at

this trial, and we are attempting to get her back here. It is

my understanding, if this defendant goes to Dublin, she will

be prevented, and I believe that the Bureau of Prisons should

hold out Ms. Savoie's initial claim to Dublin over this

defendant's. So all I'm asking is for the Court to say no,

make no recommendation with regard to prison placement.

Surprisingly, defendant also asks that she be released

pending appeal, and in the alternative, at least be allowed to

self-report. I say surprisingly because this issue has been

litigated. In fact, the first time that I am aware of in this

district, this issue has been litigated all the way up to the
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Ninth Circuit. In fact, she hired Dennis Riordan, one of the

best criminal appellate attorneys on the west coast, to

represent her at the Ninth Circuit, and this is what the Ninth

Circuit held in looking at her request for release.

"The district court properly found appellant failed to

establish by clear and convincing evidence that she is not a

flight risk." The Ninth Circuit continued, saying, "The

district court also properly found that there are no

exceptional circumstances why appellant's detention pending

sentence would not be appropriate."

This issue has been decided. In effect, they're almost

asking this Court to overrule what the Ninth Circuit ruled at

their request.

I would ask the Court continue detention of this defendant

and readopt it's findings set forth in its April 28th order.

You've heard this trial, and I want to wrap it up and not

take too much of the Court's time, but there are a couple of

final points I want to make.

The first is just a frank request. Don't punish us for

making a ten-year recommendation. There's been a part of me,

a big part of me, that was strongly tempted to recommend 20

years in this case. That's where the defendant clearly

thought we would be, given the Eric McDavid sentence, the

guideline sentence. I think that would have been a very

reasonable recommendation.
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I've been appearing before this Court for over 25 years,

and I have always provided you with nothing but my frank and

honest recommendation, and I'm not going to change today. Ten

years is what we strongly believe this defendant should get.

It's human nature in a bitterly contested case for a court

to want to split the baby, and I would suggest that's why you

have the defense recommendation of 18 months. Does the

defense really think the five-year mandatory doesn't apply?

Of course not. But they wanted to get under five years

because they think, it's kind of like a defense, we have to be

low so when they come in high we will get somewhere in the

middle.

I'm not doing that. I know this Court will independently

and carefully think about the appropriate sentence. Don't

play the game defense is asking you to play.

Second, the defense in all of its statements really talks

nothing except about specific deterrence for this crime, that

this defendant will never commit another crime and you can

trust that. But the Court, of course, has to not think just

about specific deterrence for Briana Waters, but you must

think about a general deterrence for the public at large. And

in this case, not only just general deterrence for other

individuals that might be considering arson, but other

individuals involved in the Earth Liberation Front and in the

Animal Liberation Front.
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At some point in time -- maybe not next week, maybe even

not next month -- but at some point in time we will make

arrests in the Woodinville arson investigation, and at that

point, that individual or individuals will have to make a very

difficult choice: whether to cooperate with the United States

or not cooperate. And it's very difficult for Animal

Liberation Front or Earth Liberation Front members to

cooperate. Why? Because within that group, the most hated

and vilified label anyone could ever get is that of being a

snitch.

And it makes sense. Why does the ALF and ELF attack

cooperators so unmercifully? Because no one will join their

groups if they have the fear in the back of their mind that if

we're caught, my coconspirators will turn on me. That's why,

you heard the description, how they all get together before

any of these crimes and they join hands and they all

individually pledge, if caught, we're not going to cooperate.

And that is why anyone who does cooperate is absolutely

crucified within the community. Go on line and look at the

blogs of how Lacey Phillabaum and Jennifer Kolar are being

described over the last couple of months.

If this defendant, however, is shown leniency by this

Court after her failure to cooperate, after her perjurious

testimony during the trial, and after her scorched earth

tactics and posttrial claims of innocence, no one from the ELF
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or ALF will ever cooperate again. They simply won't. The

price will be too high personally.

The Court should also not only think about general

deterrence, but how this sentence will be viewed by the

victims and the public in general. The people, the many

people at the University of Washington, at Oregon State where

other people were involved in poplar analysis, all of the

various victims in this case will be watching this sentence,

and a strong message needs to be sent so that they have faith

in our system.

Finally, I'm asking the Court to consider a personal

aspect of it. This defendant has proven time and time and

time again, she is totally incapable of accepting

responsibility for any of her actions. Think about it. In

the fall of 1998 she invites Craig Rosebraugh to come up to

Evergreen and give a speech, and after that speech she's

interviewed by Robert Sullivan, and he asked her whether she

supported arsons and mink farm releases. And she's quoted as

saying, "As long as people don't get hurt, I totally support

it." Not I support it; I totally support it.

And her friend, Tiffany Tudder, comes into this Court and

tells you, "Yeah, I was there at the conversation that

occurred." She can't accept responsibility for that

statement. Not only does she deny making the statement, but

she says that is exactly the opposite of what I thought.
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Second. In 2001, she personally provides a collection of

articles to Jennifer Kolar, her then good friend. She writes

on the top of that, "Here are some articles to read. Let's

talk about it later."

Her fingerprints are on the outside; her boyfriend's

fingerprints are on the inside. The articles are all

extremely radical writings, anarchist writings about how to

destroy our current economic system.

When shown these articles, her response during this trial,

"I don't remember having read any of those articles or those

words; I disagree with them." Yet when we search Bill

Rodgers' house and Justin Solondz's house, what do we find?

These exact articles. The two people that she was most

closest to during this time frame, all are reading this. Of

course she's reading these things and thinks they are

important. But when she gets here to court, she cannot accept

responsibility.

Her own cousin gets on the stand and testifies. A friend

of hers. Can she accept responsibility for Mr. Corrina's

testimony? No. She basically destroys her own family to try

to protect herself. Mr. Corrina's mom flew out here to

provide him a little support while he testified. She wanted

to sit here and give him one friendly face in the stand while

he had to get on the stand and do what must have been a

nightmare, testify against his own friend and cousin.
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How did defendants respond to that? They got up and gave

Robert Corrina's mom a subpoena and told her, you might be a

witness and you've got to get out of court. And they escorted

her out of the courtroom, to make sure Mr. Corrina didn't even

have his own mom here in court to support him.

That's the kind of scorched earth tactics that she

undertook, denying her own responsibility for her actions to

try to save herself. Has she changed?

Now at the eleventh hour, as the Court indicated at the

beginning of this case, we have the letter from Mr. Bloom.

He's not here today. Why? Well, a quote from his letter.

This is what Mr. Bloom wrote to the Court:

"It is important to Ms. Waters that Judge Burgess is aware

that she was not happy with what might be seen as an overly

aggressive response by my to the manner in which Judge Burgess

conducted the trial and the proceedings that took place prior

to the trial. My style is not her style.

"Ms. Waters suggested that it might be best if I did not

attend court on the day of sentencing and that Mr. Fox would

speak for her on that date. She believes my absence on that

date would signal to the judge she was not happy with my

response to the various rulings by Judge Burgess. She was,

and is, hopeful that Judge Burgess will not punish her for any

antipathy he might have for me and my approach. She believes

that her request that I absent myself at sentencing would make
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her feelings clear to Judge Burgess."

I don't know which is more insulting about this letter,

the fact that they think you might somehow be affected by

personal feelings toward an attorney, or if they think they

can fool us by this last minute letter; that we didn't sit

here for a month and watch how closely she and Mr. Bloom were.

Were there bad feelings in this case at times between the

attorneys? Yeah, there appeared to be. They appeared to be

directed all toward Mr. Fox who was not being rabid enough for

Ms. Waters' and Mr. Bloom's tastes.

She chose Bob Bloom. She had two excellent attorneys in

the Federal Public Defenders office, but she took

extraordinary steps to make sure Bob Bloom represented her.

She went into court and basically lied to the Court saying, I

have the money to pay for Mr. Bloom to represent me throughout

this case, when in fact she clearly didn't, and then got Mr.

Bloom appointed to the CJA panel so he could be paid, at

government expense, for a panel that he wasn't even a part of.

And now she comes at this eleventh hour fearful that it might

hurt her and says, oh, gee, I didn't like Mr. Bloom's actions.

I'm so angry at the way he treated the Court. It's insulting.

This defendant comes before the Court today and asks for

mercy. She could have cooperated, she could have proven that

she was worthy of being shown mercy by this Court, but she

chose a different path.
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The United States comes before this Court and we also ask

for mercy. That's why we're not asking for 30 years as

required by the Sentencing Guidelines; we're not even asking

for 20 years, as Eric McDavid received in the Eastern District

of California. But we are strongly asking for a ten-year

sentence of imprisonment because that not only shows mercy for

this defendant, but it also shows justice to the public at

large.

We are asking the Court to remember that the American

people will view this sentence, her codefendants will view

this sentence, and all the victims are watching this sentence.

It should be no less than ten years.

And I will remind the Court what you are already keenly

aware of. Even after this sentence, this defendant still

holds the key. She has not chosen to cooperate up to this

point in time, but after sentencing, for a year she could

change her mind and come in and cooperate with the United

States and put herself in a position of perhaps reducing her

sentence.

She doesn't want to ever make a difficult decision. She

wants the Court to do her work for her. She's 32 years old.

It's time for her to be held accountable for her own actions.

It's time for her to make the difficult decisions that so far

she has avoided.

THE COURT: All right. Mr. Fox.
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MR. FOX: Did the Court want to hear from --

THE COURT: No, I will hear from you.

MR. FOX: Thank you.

May it please the Court, counsel.

One of the reasons I think that we put sentencing off for

a number of months after a trial is to give everyone a chance

to sit back, take account of what took place, let emotions

calm down, and have a more reasoned approach to sentencing

issues. This was a contentious trial, there's no question,

and I can't stand here and point my finger and say that all

the issue comments came from the other side because they

certainly came from our side of the courtroom. I'm not going

to dispute that.

I told you once, Your Honor, that I can't apologize for

what other people do. I think I told you that one day when

Mr. Bloom had forgotten his notebook at his hotel room, and I

said I don't usually apologize for what other people do, and I

guess in this instance I can't apologize for Mr. Bloom's

behavior.

But I think the reason, as I said, we delay sentencing

months after a trial is to let the tempers tone down so we can

sort out what the jury found and what the jury didn't find.

And I could stand up here and reargue our case, as the

government just did. I have a lot of things to say about what

Mr. Bartlett said about the evidence. We had a different view
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of the evidence. This folder that Mr. Bartlett just spent so

much time talking about, it turns outs Ms. Kolar lied. She

deceived the Court and the government about the chain of

custody of that folder. This was revealed by the government,

and I respected the fact that the government came forward and

told us this.

But, I guess, let's put that aside because this isn't the

time to reargue the facts of the case. We had a trial, the

government made a series of allegations against Ms. Waters,

the jury rejected some of those allegations, found Ms. Waters

guilty of others, and now it's the time to look at Ms. Waters

as a person and determine what a fair and just and

compassionate sentence should be.

I think that when you look at the 250 letters that have

been generated and you see that they are from people from all

walks of life, from Ms. Waters' past and her present, many of

these people may think that based upon their knowledge of Ms.

Waters, she was innocent. They didn't sit through the trial,

but that's their opinion. And the fact that they come to that

conclusion is based upon their observations of how Ms. Waters

acts on a daily basis, how she's acted, how she's conducted

her life.

These letters -- well, let me go back.

At trial, the Court heard about the Watch campaign, and

that was one slice of Ms. Waters' life back in the late '90s
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and early 2000s. But since Ms. Waters went to California,

since she moved down there, the Court can see what type of

person she is, how she conducts her life on a daily basis.

This is a person who lives a modest life. She's not

living a life of excess. She's in the community of parents,

of musicians in the Bay Area. She's someone that helps out

the community. She plays at benefits, she plays as senior

citizen homes. This is a person who's dedicated her life to

improving the community around her. These letters of support

are not from this mythical ecoterrorist network; they're not

from the Earth Liberation Front. These are from regular

people that see Ms. Waters, that know her, and see the types

of good things she does in the community.

This is someone, whatever the jury's verdict about what

happened seven years ago, this is someone who has given a lot

to her community, and who can continue to give a lot to her

community. She's someone that has played a positive role.

The type of things that she's done are the types of things

that we want people who come to the criminal justice system to

do when they get out of prison. Ms. Waters has already done

that.

So I guess what the Court has to figure out is, is Ms.

Waters the type of person who needs to be locked up behind

concertina wire with armed guards and dogs and chains and

locks? Does she need to be put into a prison for the length
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of time that the government is asking for? And she's not.

She's not the type of person that needs incarceration for an

extended period of time.

Now, the government has said that this was a horrible

crime, and we have no dispute with that. The people who did

this were completely misguided. And our heart goes out to the

people who suffered from this.

I would note that some of the people who are victims of

this crime have filed letters with this Court saying that they

use the Center for Urban Horticulture, they were master

gardeners, and they still believe that Ms. Waters deserves

leniency from this Court. So not everyone who was affected by

this believes that Ms. Waters should be locked up for ten

years or more.

And I think what the Court has to do is to weigh this

arson in 2001 committed by a group of people who were

completely misguided and to see whether or not that in and of

itself is a reason to lock up Ms. Waters now in 2008. I would

suggest that after reviewing everything that's been submitted,

there is no valid penological reason to lock Ms. Waters up, to

take her away from her family and from the community for such

an extended period of time.

Now, we don't agree with the verdict of the jury, and it's

hard sometimes when you come to court. I mean, there really

is -- we are really in a no win situation. We can't come to
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court and say, oh, well, we've insisted on our innocence. Ms.

Waters insists on her innocence, but now that she's been

convicted, she takes responsibility for her actions. That

can't logically take place.

So we're really in the position of coming to court

insisting on what she's always insisted on, that Ms. Waters

has insisted on her innocence and coming in with dignity and

asking the Court to impose a fair sentence.

So the Court's not going to be able to hear and will never

hear any type of acceptance of responsibility of the type that

the government is holding out is what needs to happen. Ms.

Waters is innocent. She disagrees with the jury's verdict,

but she has to accept it. That's the rule of law. We have to

accept what the jury said. We're going to appeal it, but we

have to accept it.

But I would ask that the Court trust the jury's verdict as

well and that the government give due respect to the jury's

verdict.

The jury trial is not just some cog in the transmission

belt that goes from indictment to prison. The jury trial is

not just some formality where the government brings in

hundreds of pieces of evidence and the jurors agree with the

government and sends them off to prison. It's not that type

of a thing. And a jury trial right is not just the

government's tool, but rather the jury trial right is the
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shield of defendants, particularly in cases where the emotions

run high, particularly in cases where the government is

alleging terrorism. The jury verdict has to be respected by

all parties to this decision, and it's a shield for Ms.

Waters. And she asks the Court, and pleads with the Court, to

give effect to the jury's verdict.

What that means is the jury didn't convict Ms. Waters of

bombing anything. It's a term that Mr. Bartlett used. It was

what was alleged at trial. The jury didn't convict her of

bombing anything. The jury didn't convict Ms. Waters of

conspiracy. They didn't convict her of conspiracy, and I'm

going to address the significance of that in a few seconds.

But what we are asking the Court to do is to honor and to

trust that the jurors that came into court and sat in that box

over there, that they reached the right decision. We are

going to appeal, there's no question about that. But for

sentencing purposes, we have to trust what the jury did. And

we can't second-guess what they did.

Trust in the jury system and the rule of law is really,

really important in today's climate. Mr. Bartlett talked

about terrorism, and I note that the government is engaged in

a war on terrorism. A lot of people's rights have been

trampled by this war on terrorism. The Supreme Court's

decision last week should give pause to everyone about what

can be done in fighting the war on terrorism and whether or
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not we can just ignore due process of law.

I cited in my materials to experiences in other countries

and other times. Other countries, liberal democracies like

England that dealt with terrorism issues. Maybe it seems

remote to talk about what happened in the 1970s in England.

Maybe I'm getting old and it doesn't seem that long ago. I

actually lived in Ireland in the '70s, so I lived through some

of these events.

But everything that we're going through now has gone on in

other countries. The IRA bombing campaigns in England in the

'70s and '80s were horrible because lots of people died. The

English government's judicial response was hideous. They

tried to do away with jury trials in terrorism cases. People

were convicted who insisted on their innocence and spent years

in prison until they finally were vindicated. And I talked

about the guilt before in the Maguire Seven.

Again, 30 years ago may seen like a long time ago, but we

can learn from the experiences of other countries. We can

learn by seeing how they responded to terrorism and how they

messed up, and how they ran roughshod over the rights of

people.

I attached to my sentencing memo some articles, or at

least one article, contemporaneous with the convictions of the

Guildford Four bombing case, where the moral outrage was the

same as, I'm sure, coming from the government's table today,
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and yet those people turned out to be innocent and they spent

16 years in prison for something they didn't do.

Again, I bring that up only to tell the Court, this has

happened before. Someone has gone through a terrorism trial,

insisted on their innocence, and turned out to be innocent.

And that's why we have to learn from that experience and have

respect for the jury's verdict.

We have to have respect for the fact that the jurors

didn't find Ms. Waters guilty of conspiracy. We have to have

respect for the fact that the jury didn't convict Ms. Waters

of the arson at Susanville. The government didn't even file

charges on that basis. There was no indictment ever returned

against Ms. Waters down in the Eastern District of California

for that arson. Yet the government spends a lot of its

sentencing memo talking about Ms. Waters being involved in the

second arson.

I've got to respond to that, and that's why I spent -- I

felt strange including in my sentencing memo, which really

ought to be about Ms. Waters and her character, talking about

Stan Meyerhoff and his character. But it's important because

it goes to the issue of proportionality.

The government says, well, Ms. Waters is most similar to

Joyanna Zacher and Nathan Block and they got 94 months, or 92

months. Well, Joanna Zacher and Nathan Block pled guilty to

conspiracy, and they also pled guilty to being involved in two
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separate arsons, the Romania II arson and the Jefferson Poplar

Farm arson.

So if we're looking at proportionality, if those people

got 92 months because they admitted being in the conspiracy

and they admitted involvement in two arsons, then you have to

look at one arson versus two arsons. Well, the government

says, well, Ms. Waters was involved in two arsons. We're not

going to try to prove it. We're not going to bring any

witnesses in to say that. We're going to attach Stan

Meyerhoff's 302 report to our sentencing memo, but we're not

going to bring him to court.

I object to the Court considering the 302 reports that's

attached to this government's sentencing memo. Under Ninth

Circuit cases, the ones I've cited in my brief, the Court

can't consider that type of unreliable hearsay of an alleged

coconspirator in a proffer session as a basis for sentencing.

The government will never bring Stan Meyerhoff to court

because he's unreliable. Everything that I filed with the

Court -- his involvement in subsequent surveillance of Naval

installations for which he's never been charged, for what I

can only imagine would be sabotage against a Naval

installation; his attempted murder; his consistent lies, even

to the U.S. Probation Service officer in the presentence

report about his drug use -- all of these things show that

he's unreliable.
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But also it's contradicted by what the other people who

were at Susanville said. Darren Thurston, who also was a

cooperating witness for the government, said very clearly that

Briana, he had never met Briana Waters. He doesn't know that

person.

Jennifer Kolar, who the government trots out as being a

credible witness, she testified in this court about Susanville

and never once said that Briana Waters was there.

So what Stan Meyerhoff now says after he wants the

government to be his advocate -- and those are his own words,

caught on tape with his fiancee, Lacey Phillabaum -- he's just

simply saying what the government wants him to say because he

thinks it's going to get him a better sentence. But that's

why the government won't bring him in. That's why they never

brought him in.

And I only, again, I'm only taking precious time because

it's important to show that Briana Waters has not been

convicted, has not even been charged, and had no involvement

in the Susanville arson. And then we're only dealing with one

arson, we're not dealing with two. And the proportionality

analysis is then driven by that. We are talking about one

arson, not two.

The jury also, as I said, did not convict Ms. Waters of

conspiracy. They didn't convict her of conspiracy. And so

I'm offended when the government -- I guess maybe I offend
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easily -- but I'm offended by the government's continued

reference to Waters and her coconspirators. There are no

coconspirators. The jury didn't find her guilty of

conspiracy. And it's basically an insult to the jury to say,

well, we believe that she's a coconspirator there, but we know

you didn't find her guilty of that, but we're still going to

paint her in that terminology.

That's significant. The conspiracy counts are significant

because it ties into the terrorism aspect.

I made a number of legal arguments in my brief as to why

the terrorism enhancement doesn't apply in this case. I'm not

going to spend any time on that unless the Court has

questions, but to me the key issue, apart from the other legal

arguments I made, is whether the government can show the

motivational element. Whether they can show that Ms. Waters

intended to take an action to intimidate government.

Not whether coconspirators of a conspiracy count for which

the jury didn't find her guilty had that intent, not other

people accomplices. But what was Ms. Waters intent? Has the

government come in with clear and convincing evidence that Ms.

Waters had the motivational element of the terrorism

enhancement? Because that's what the Ninth Circuit says they

need, clear and convincing evidence, because of the completely

disproportionate impact in sentencing that the terrorism

enhancement has.
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The only evidence that the government cites to as evidence

of Ms. Waters' motivation is, in their sentencing memorandum

they cite to Jennifer Kolar's testimony that "we as a group,"

meaning the Book Clubs, the various training groups that Ms.

Kolar participated in, "We as a group decided to move into

dealing with genetic engineering issues and we decided to

target Toby Bradshaw's research." That's the first bit of

evidence that they point to.

Well, "we as a group" means the training sessions, the

Book Club meetings, that the testimony was very clear that Ms.

Waters never attended, she wasn't a part of. And the jury's

verdict refusing to find her guilty of the conspiracy count

shows that you can't charge Ms. Waters with what the Book Club

wanted to do.

The second piece of evidence are the communiqués that were

issued. The communiqués that Lacey Phillabaum wrote after the

arsons where Lacey Phillabaum for the first time found out

what was going on down at the Jefferson Poplar Farm, the other

action, and she sat down with some of the other people and

wrote these communiqués. She testified that Briana Waters

wasn't there. There was no evidence that Briana Waters knew

anything about these communiqués, what was going to be in

them, what the focus was. And again, the fact that she wasn't

convicted of conspiracy means that you can't charge her with

knowledge of what the coconspirators were doing or the
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coconspirators' motivations.

Now, Judge Aiken, down in Oregon, dealt with the terrorism

issue. Actually, she had a full day hearing on the legal

arguments. But the big difference between the Oregon cases

and Ms. Waters' case is that the defendants in that case pled

guilty and admitted facts sufficient to find a terrorism

enhancement.

Yesterday I filed under seal, because it was a sealed plea

agreement, Suzanne Savoie's guilty plea statement. That

guilty plea statement, Ms. Savoie admitted factually the

elements for the terrorism enhancement. She admitted that the

goals of the conspiracy were to intimidate the government and

to retaliate against the government.

All the other people down in Oregon -- I filed one, or

attached to my memo Daniel McGowan's guilty plea statement,

but I believe that Zacher's and Block's had identical

language. They admitted also the elements of the terrorism

enhancement.

So those cases are completely different than this case

because those people admitted that what they did was intended

to influence the course of government.

Here we had a trial, and the jury didn't convict Ms.

Waters of conspiracy. I guess, given their failure to convict

on conspiracy, I'm asking the Court to have respect for that

jury verdict, to trust that those 12 people knew what they
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were doing, and they rejected the government's arguments.

So at this point, the only thing that Ms. Waters is being

sentenced for is being an accomplice to one arson, on one day

in 2001. There are two jurisdictional basis for that one

count, for that one act, but it's only one act. We don't know

what the jury found Ms. Waters' motivation to be. We don't

know that. That wasn't something that they were asked to

determine. And because they didn't find her guilty of

conspiracy, you can't give her the terrorism enhancement

because there's no evidence as to what Ms. Waters' intent was.

Now, the terrorism enhancement is important not just

because it completely skews the sentencing structure, but it

also has significance for the Bureau of Prisons and has

significance as to how Ms. Waters is going to be treated by

the Bureau of Prisons, what her custody status will be, and

what will happen maybe next year in a different political

climate or a year after that. We don't know. But if the

Court finds a terrorism enhancement, I can assure the Court

that the conditions of confinement are probably going to be

more severe for Ms. Waters than if the Court doesn't find it.

So it's significant, not just in terms of skewing the

sentencing scoring, but in terms of the conditions of

confinement.

We're dealing with one person today, Ms. Waters; we're not

dealing with the ELF. You know, Mr. Bartlett talks about the
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Street of Dreams arsons. There could have been nothing worse

for Ms. Waters than for that to have taken place. That is not

something that Ms. Waters ever wanted to happen. She had

obviously no part of it, and it is really insulting to say

that her going to trial encourages that type of behavior.

That's not who Ms. Waters is. She will tell you in a few

minutes that she does not want to be a martyr for anyone's

cause. The fact that there are people out there -- and we

don't know that it was the ELF that set that fire. I mean, we

simply don't know anything about it. I'm not privy to any of

the investigation. But that fire was a disaster for Ms.

Waters, and it contributes to the climate of fear. And, yes,

there is a climate of fear in this country about terrorism

cases. And did that have an effect on the trial? Yeah. That

climate of fear clearly had an effect on the trial.

You know, true, the jury didn't return verdicts on

everything the government was asking for, but in other

circumstances, maybe the jury would have found Ms. Waters not

guilty, but there was this climate of fear in this country

about terrorism, and those fires out in Woodinville

contributed to that. That's not something that we in any way

condone, and we believe that it was very, very damaging to Ms.

Waters.

So you have to look at Ms. Waters not as a representative

of the Earth Liberation Front, but as a person, as a full
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person. A person who's being sentenced for something that

happened seven years ago. Someone who's very functional in

the community, who has many ties to the community. And the

Court does have the power to impose probation. The Court has

that power.

The government has poo-pooed that. They haven't given any

legal analysis to the fact that the statute, as written, does

not preclude the Court from suspending the mandatory five

years in prison. Other statutes, even in Section 844, talk

about how the Court can suspend mandatory minimums. The

mandatory minimum drug sentences have a provision about how

the Court can suspend it.

844(f) and (i), mandatory minimums don't have that

language in it. The Court has the power to impose probation.

I suppose, in this environment, the Court can even impose the

ten years that the government is seeking and suspend a portion

of that. The Court could suspend three years, the Court could

suspend five years. The Court has incredible discretion as to

the type of sentence that they can impose, and can tailor that

sentence to the individualized issues that pertain to a

particular defendant.

Now, in terms of calculating the guideline range, the

first step in the sentencing process. I have made objections

in our materials to the government's and the U.S. Probation

Service's calculations. We dispute some issues about the
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value of the building. Do we use the value that the

University of Washington itself gave, the 1984 value adjusted

for inflation? That changes the sentence by one point or so,

or the calculations by one point. I'm not going to spend much

more time on that. We believe that the sentence can be

adjusted -- the guideline calculations can be adjusted

downwards based on other factors.

Family circumstances, you know, is correct. Mr. Bartlett

says there's no evidence that Ms. Waters loves her daughter

more than he loves his daughters or I love my daughters. And

I think sometimes in our judicial system, we get anesthetized

to the human costs of mandatory incarceration. There are a

lot of people that come through the court with small children

who go away for long periods of time. There's no question

about that. And sometimes as lawyers or judges, we become

anesthetized to that. We forget what the true human impact is

of those sentencing decisions because we're so used to,

particularly in the federal system, to pass out sentences in

five-year increments. There's a whole series of mandatory

minimums, five years for this, five years for that, and we

forget what the impact of that is on people with young

children.

I have to look back at myself, when I represented Ms.

Waters, I had to look back at myself as a lawyer where I've

talked to clients about plea bargains in the past and they
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say, well, I have a young son, and I say, well, you know, you

really need to take this deal and go away for four years to

avoid being sent off for a much longer period of time. And I

wonder if I've been hardened myself where I've not thought

about the effect that that has on young children. And I have

to think, you know, have I been insensitive, possibly, because

of race and gender issues, or class issues, that I have not

paid attention to that?

But the effects are there. And in the past, those

effects, we brush those aside because of the mandatory nature

of sentencing.

We're in a new era. Things have changed since the Supreme

Court issued it's decision a few years ago. We no longer have

to callously disregard people's children in the mix when we

are sentencing people. We don't have to do that anymore, the

Court doesn't have to do that anymore.

And should we think about the effect of prolonged

incarceration on a three-year-old child? Yes, we have to

consider that.

Is it extraordinary? Well, I agree, it's probably no more

extraordinary than in other cases where people have young

children, where they are mother's of young children.

Is it humane to consider that? Yes.

Is it compassionate to consider that? Yes.

Is it just to consider that? Yes.
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And so I think that the family circumstances need to be

considered by this Court, and adjust the sentence guideline's

range downwards.

Other things, such as good works. The Watch Mountain

campaign, it wasn't just a college project. It contained Ms.

Waters' life for a significant period of time. She helped

other people. It wasn't just she helped the town prevent the

town from being obliterated by having the old growth forest

cut down. It was a peaceful campaign. It was a campaign that

brought together people from diverse backgrounds who

ordinarily wouldn't be getting along, and it worked. It was

successful. And the film documented this peaceful, nonviolent

campaign to promote that model of social change around the

country.

So it wasn't just a college project, it was something of

significance. And when we're dealing with sentencing, this is

like "This is Your Life" where everything comes in. This is a

piece of Ms. Waters' life that was important. She wasn't just

a college student. She was doing something for society.

Everything that she's done down in the Bay Area, the

probation department said, well, a few benefit concerts.

Well, these letters show more than a few benefit concerts. It

shows a consistent concern for the affairs of others. A

concern for senior citizens, a concern for refugees in

different parts of the world. Ms. Waters didn't have to do
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any of those things. She didn't have to spend her days going

to senior citizen centers and playing the violin for them.

She didn't have to play the benefit concerts for refugees.

She didn't have to do that. That's not just what ordinary

people do. It's what she did. It shows her commitment to her

community.

Is she entitled to get consideration for that at

sentencing? Yes. That's what we are here for. We're here to

figure out what sentence she should get based upon who she is

and what she's done. Does that reduce her sentence under the

guidelines? Yes.

Post offense rehabilitation. Well, it's hard to talk

about rehabilitation when the position is I didn't do

anything. But even assuming the government's correct, giving

credence to the jury's verdict, you have to look at what Ms.

Waters has done in seven years. Has she been out with other

ELF people? Lacey Phillabaum and Stan Meyerhoff spent the

last seven years together. Ms. Waters didn't have any

partners that were part of the Earth Liberation Front. Does

she have a secret hidden arms cache, as Mr. Thurston and Ms.

Gerlach and Mr. Meyerhoff had? No. Was she in the country

illegally with fake passports or identification as Mr.

Thurston was? No. Was she involved in drugs for the last

seven years as Chelsea Gerlach was? No.

So you have to look at what she's done and say, well,
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given -- let's assume, assume the government is correct for

2001, where is she today? Has there been post-offense

rehabilitation? Is she entitled to ask the Court to adjust

downward the guidelines? Yes. Clearly under the case law

she's entitled to do that. So we ask that the Court can and

should adjust the guidelines downward.

And I think that when you look at all these things, you

are trying to calculate the Sentencing Guidelines, you put

aside things that she wasn't convicted of and you put aside

the conspiracy charge, I calculated the range of six to twelve

months with a level of ten.

So then you look at the 3553 factors, and you look at

comparability and proportionality. And then you really do

have to look at all the other sentences for related cases, or

what the government claims are related cases, and that

includes the Oregon cases.

If you look at all of the sentences that have been

imposed, the average sentence is one to two years per arson.

If you look at what people in Oregon got and you look at

people up here, the average, they tend to be in the one to two

year range per arson. Jennifer Kolar was involved in four,

maybe five arsons. She trained the Book Club in secret

communications, she built devices and placed them herself. A

core member. Her plea was to a seven year range.

Stan Meyerhoff, you know, dozens of arsons. Attempted
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assassinations, continuing criminal activity, spying on Naval

installations and the like.

Again, basically one to two years per arson. That's the

pattern. True, a lot of those people cooperated. But then if

you weigh their cooperation against other factors unique to

them, which don't exist in this case, such as integral roles

in the Earth Liberation Front, writing the arson manual and

publicizing it on the Internet, arms caches and the drug use,

all those things that a lot of those people in Oregon had,

that balances out against that cooperation.

And so even though, even assuming the government's

calculations on obstruction, which we disagree with, but even

assuming that's correct, the guidelines range is still not

that much different than what we're asking for.

If you say one to two years for arson for someone that is,

you know, integrally involved in the Earth Liberation Front

and has done all the things Stan Meyerhoff has done, well, you

balance that against his cooperation and you end up, for

someone like Ms. Waters, with the one to two years. And

that's why we asked the Court to impose five years and to

suspend three-and-a-half years of that.

That's proportionate, it's fair, it takes into account her

family circumstances, it takes into account everything that

she's done in the last seven years that we ask the Court to

give her credit for.
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I just have a few other minor points I would like to deal

with at the conclusion.

I notice that the presentence report from the probation

department asks for a computer ban in the conditions of

supervision for post-release supervision.

There's nothing about this case that would justify that.

I have cited cases in my memo that under the Ninth Circuit

case law you can't impose those restrictions, and I would ask

the Court not to impose those in terms of conditions of

supervision.

In terms of the Bureau of Prisons and placement. It's

very important to Ms. Waters that she be placed in Dublin, in

California. Her family is down there. Even if she is serving

prison time, she can still see her daughter during visits.

Recently her husband has been up -- or Mr. Landgraf has

been up here with Kalliope and they've had some visits at the

FDC, but he has to go back to California, and it would be

very, very bad for Kalliope if she couldn't see Ms. Waters at

all.

Ms. Waters' release community is down in the Bay Area.

Her support community is there. Her father, who is aging and

has some illnesses, is down there. There's no reason not to

recommend placement at Dublin.

Suzanne Savoie apparently is in the camp unit, and it is

probably doubtful that Ms. Waters would end up in camp, and so
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they can still be separated. I would ask the Court recommend

placement at Dublin, and if the Bureau of Prisons doesn't do

it, well, then I guess they won't do it. But I would ask the

Court to not treat Ms. Waters any differently than anyone else

who comes to court and asks for a placement at a specific

institution.

I have also asked the Court to sign an order of correcting

the presentence report. The presentence report will follow

Ms. Waters to prison. If there are factual allegations in the

presentence report that are not necessary for the Court to

resolve when imposing sentence, such as the allegations about

Susanville, I would ask, as the rule requires, that either a

new presentence report be issued that deletes those references

or that the Court enter an order that is attached to the

presentence report saying the Court is not finding those

factors.

In terms of an appeal bond, I don't know if the Court

wants to hear my presentation now or after sentencing on that?

THE COURT: We will hear it at that time.

MR. FOX: After sentencing?

THE COURT: Yes.

MR. FOX: Okay. So basically, Your Honor, we're

asking the Court to sit back after three months, after a

contentious trial, to look at what the jury convicted Ms.

Waters of, and to sentence her in accordance, not what the
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government hoped the jury would convict her of, but what she

was actually convicted of. That's what I would ask the Court

to do, and I appreciate it.

Thank you.

THE COURT: Thank you.

Let's take our morning recess, and then we will continue.

All right.

THE CLERK: All rise. Court is at recess.

(Recessed at 10:30 a.m.)

THE COURT: I have heard from Mr. Fox now.

Ms. Waters, as a defendant, you have a right to speak to

your situation here as to what's taken place as to sentencing,

so anything you want to say, now would be the time to do that.

THE DEFENDANT: Is it okay if I use my notes?

THE COURT: That's all right.

THE DEFENDANT: Judge Burgess, I'm very grateful to

be able to have this opportunity to talk to the Court. There

have been so many things that so many people have said about

me and written about me, and a lot of these people don't

actually know me, so I'm really happy to be able to speak the

truth. And it's tempting to -- I want to respond to a lot of

things that the prosecution said, but I know the goal is not

to reargue the case, and I just want to talk about who I am.

I don't want to go into too much about Mr. Bloom because

we've already talked about him today. But basically I feel
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that he is not me, and just because he's my lawyer doesn't

mean that we are one person. And just because I hired him

does not mean that I knew everything that he was going to do

in the trial, and I did, I did disagree with his approach in a

number of ways, and that's why I asked him not to be here

today because I just thought it would be better. But he is

not who I am, and that's why I am addressing the Court, to

tell you who I am.

I'm a mother, as you know. I'm a daughter and a partner

and I'm a friend and I'm a teacher, and I'm not a terrorist.

I ask you to bear with me.

I am a person who lives in peace. I do believe in

spreading compassion in the world, not hatred. I do believe

that our society and our planet is in need of healing, but not

through violence or force of any kind.

The one thing that I do agree with the prosecution about

is the seriousness of this crime. I don't agree with it in

any way. I don't endorse it. I think that it was really

wrong, and I do pray for the victims that were affected. I

hope that they are healing from the trauma and the stress that

it caused them.

I also pray for the people who did lie on the stand to

save themselves. It's amazing to me what people can do when

they are scared.

Your Honor, I am disappointed about the jury's decision,
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but I know that you are bound by it today and I respect that.

I wish to make it clear that I am not the person that the

prosecution has painted this evil, negative picture of. And

I'm also not the martyr that other people might praise or

support. They all seem to think that I'm someone that I'm

actually not.

I believe that I am a valuable, contributing member of my

community and society, and I don't agree with property

destruction or violence of any kind to further a cause, and I

don't want to be a martyr for any cause. My cause is to take

care of my family.

And I know that this is not about how much I love my

daughter because everyone loves their kids. But I am her

mother and she does need me, and every day that I am away from

her is more pain than I can describe.

I know that you have read a lot of letters about my life

and about who I am, and so I'm not going to go into a lot of

detail about what I have done because there's already been so

much written about that.

But I just wanted to say that before I was incarcerated,

what seems like a very long time ago, I spent almost all my

time with my daughter caring for her and never spent one night

away from her.

I also spend my time teaching music to children and to

adults and participating in a lot of activities with my
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neighborhood parents group. You know, I am not Mother Teresa,

but I think we do do a lot of things to help people: helping

to cook meals for families in need and education, you know,

educational events for our children, as well as advocating a

cleaner and safer neighborhood to live in. I've obviously not

been able to do any of these things from prison and will not

be able to.

I am not begging for your mercy, but I am asking you to

consider the facts of my life in your sentence. I'm asking

you to consider everything that you have read when deciding

how long I need to be separated from my family and my

community. Hundreds of people will be affected by your

decision, and the most important one is, obviously, my

daughter.

My greatest desire is to care for her and nurture her

throughout her childhood. And I know that my life is more

valuable in society rather than in prison.

Your Honor, I do ask that you consider everything that I

have said in your sentencing decision, as well as in your

decision whether or not to release me pending self-surrender

to whatever prison I am assigned to. It would make such a

tremendous difference. I can't even describe what kind of a

difference it would make to be able to prepare my daughter

before serving my sentence.

I have no desire to flee, which would obviously create a
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lot more pain for everyone involved. I just want to put this

experience behind me and move on with my life. Therefore I

will show up as I am required to by the Court, as I have

always done in the past throughout the course of this case.

I appreciate your time for listening to me, my words.

Thank you.

THE COURT: Now, Mr. Thomas, you prepared the

presentence report. Anything to add to that report in any

way?

THE PROBATION OFFICER: No, Your Honor.

THE COURT: Now, it was mentioned, Mr. Bartlett,

about someone from the University of Washington.

MR. BARTLETT: Your Honor, one of the victims in the

case, Linda Chalker-Scott, is here and has asked for just a

few moments of the Court's time.

THE COURT: All right, have her come forward.

I will have you identify yourself for the record, please.

MS. CHALKER-SCOTT: Thank you, I will. My name is

Linda Chalker-Scott.

THE COURT: Okay.

MS. CHALKER-SCOTT: Thank you, Your Honor, for

letting me speak. I also submitted a written statement to

you, but today I want to talk about something personal rather

than professional and how this has changed my life.

From 1997 to 2004 I was an associate professor at the
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Center for Urban Horticulture. I'm one of those whose losses

were minimized and dehumanized by the arsonists and their

apologists who called them "collateral damage."

Just after 5 in the morning of May 21, 2001, the radio

reported a three-alarm fire at the Center for Urban

Horticulture. My first reaction was that I had left something

turned on in my lab and this was my fault. I turned to my

husband, Jim, and said "I've got to go in; tell the kids what

happened when they wake up."

I was the first person to arrive at the Center among those

of us who worked there. Firefighters and police were already

there, and I stood alone and helpless watching the smoke and

flames billow from the roof. Seeing the blackened hole that

was once Toby Bradshaw's office window, I was actually

relieved that the fire obviously hadn't started in my lab.

It was also obvious that I wouldn't be teaching class that

day, so I began making phone calls.

My mother, Charlotte Chalker, drove up from Tacoma to keep

me company (she's here with me today ). As other faculty,

staff, and students arrived, we huddled together watching the

destruction. Once the fire was out, my mother and I

approached one of the firemen and begged him to see if my

childrens' framed artwork in my office was salvageable. Since

mine was only two doors away from Toby's office, I didn't hold

out much hope. So when the fireman emerged with all the
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artwork, sooty but otherwise undamaged, I burst into tears.

In the four years prior to the firebombing, my son and

daughter would be dropped off at the Center after school while

I finished my work. When the weather was good they enjoyed

exploring the gardens, wetlands and woods around the Center.

Other times they would visit faculty, staff and students or do

their homework. They felt safe and secure at the Center, and

regarded the people there as part of their extended family.

This routine, and their sense of security, changed

permanently on May 21, 2001. They couldn't come to the Center

any longer, because there was no place to go and I was busy

with salvage and cleanup. Jim and I had to rely on

after-school programs and the hospitality of classmates'

families to take care of our 7-year-old son Jack and our

11-year-old daughter Charlotte. They were no longer able to

visit their friends at the Center, and they saw much less of

me during the many months of extra work that the firebombing

created.

On Briana Waters' web page is this statement regarding her

trial and conviction: "The stress of this situation has been

enormous on both Briana and her family, especially her

daughter." I have related my story to the Court to point out

that I, and my family, and especially my children, suffered

distress as a direct result of the senseless firebombing

planned and carried out by Briana and her accomplices. They
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destroyed my workplace, they forcibly stole from me and my

family our time together, and they shattered my children's

faith in the inherent goodness of people.

This is only one story of 50 or more out there of how very

real impacts had an effect on very real people. And I would

plead the Court, please don't allow these impacts to be

further minimized and dehumanized by the contentiousness of

only one act.

Thank you.

THE COURT: Mr. Fox, I believe you had mentioned

that -- let me get the name?

MR. FOX: Marilyn Waters.

THE COURT: Marilyn Waters.

MR. FOX: And John Landgraf.

THE COURT: Right. Let me have you just state your

name for the record.

MRS. WATERS: Marilyn Waters.

THE COURT: All right.

MRS. WATERS: Your Honor, thank you for hearing me

speak today.

I'm here, too, on behalf of my daughter, Briana Waters.

With all my heart I plead her goodness. She's really a

good person. And the way that the government has categorized

her is not who she is. It is not who she is.

She is a gentle woman, and I join the 250 individuals who
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have written to you, Your Honor, to tell you about who they

know. They know her as a kind and dear friend, a talented

musician, a skilled violin teacher, a good neighbor, and a

contributing member of her community.

They took the time to write those letters. A lot of

people wouldn't do that if that person really didn't mean a

lot to them.

Most importantly, Your Honor, I come before you on behalf

of someone who cannot be here to speak to you for herself.

Because she is only three years old, and she cannot speak with

you, Your Honor, herself, and I come before you to speak for

her.

I hope you can see this. I thought I was going to be

closer. This is my granddaughter, Kalliope.

This is Briana with her at Christmas. You can see

Briana's face.

Of course, all mothers love their children. There is no

question about that.

What I have observed, what I find extraordinary about

Briana's mothering is her patience. I have never seen a

mother more patient with her child than Briana, and it truly,

truly is extraordinary.

When she first found out that she was pregnant, she

completely embraced the prospecting role of motherhood by

reading all kinds of books about taking good care of yourself
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when you are expecting, and then also reading about parenting.

She really embraced it fully and took the role of motherhood

very seriously, unlike many women who take it for granted, and

who even think of parenting, the role of parenting, as it is,

very difficult and burdensome. But she never regarded

parenting that way at all. She considered it a privilege and

something that she needed to do the best possible job that she

could do.

Ever since Kalliope was born she dedicated herself to the

care and nurturing of her child. She chose to be the primary

caregiver of her child, not to go out and work and put her in

daycare. And she had to make sacrifices to do that.

She was a violin teacher in the evening when her partner,

John, could care for Kalliope. But she spent all of her time,

because that's how important she regarded her role as

Kalliope's mother.

I feel grateful and blessed to live in a country where we

have a judicial system within which you have the latitude and

the power to decide Briana's faith here in your sentence. You

have the latitude to sentence her to the minimum of five years

and then suspend that to whatever period of time you consider

appropriate. And I am very grateful that you have that

ability to do that, Your Honor, and I humbly beseech you to

consider that sentence for her.

I also humbly beseech you, Your Honor, to release Briana
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until the appointed report date so that she can prepare

Kalliope properly for their separation from each other.

Thank you, Your Honor.

THE COURT: All right.

Then I will hear from John Landgraf.

I will have you state your name.

MR. LANDGRAF: My name is John Landgraf. Can you

hear me?

THE COURT: Yes. Go ahead.

MR. LANDGRAF: Good morning, Your Honor, Judge

Burgess. I address you in this way because I'm speaking

directly to your highest self, that part of you which guides

your decision making and fills you with enough righteousness

to become a judge and decide what is right and what is wrong.

Your sense of compassion in the bounds of your heart is what

I'm speaking to.

I ask that you look beyond the negative ideas that have

been projected onto Briana and try to get a deeper

understanding of who she is. I ask for myself and on behalf

of our daughter that you act out of compassion as you

determine the sentence today. Consider her potential as a

mother, as a wife, as a teacher, as a helper of others, what

she can bring to this world given the opportunity. She's a

truly loving human being. I have come to know her very well,

and I can vouch for anyone, as much as Kalliope, that she is
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truly loving.

I'm not asking for special treatment, only a just reading

of the circumstances.

In addition to the hundreds of pages of legal documents

that you have had to read in this case, I trust that you have

also personally read each of the letters received on behalf of

Briana and have gained further insight into her character by

reading them. Understand, I am talking to you because you are

in power to make a decision for the life Briana Waters, the

woman who I love, who has blessed me with her spirit and love

and miracle of our daughter.

Furthermore, I humbly ask that you give her the

opportunity to prove her honesty and self-surrender. I

promise you in this court, and the prosecutors, that I will

enable her transportation to that facility, whatever date is

called for.

While detractors might argue my creditworthiness, I've had

difficulty paying some bills, I say to look at my track record

in this whole case as evidence of my consequence and support

of Briana's desire to resolve this matter responsibly. From

the very first day when Special Agent Ted Halla approached me

on a first name basis in front of our home looking for Briana,

I steadfastly support her in dealing with this challenge of

maturity. I've been with her and helped her make every flight

to Seattle to meet with prosecutors, attend arraignments,
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hearings, and finally, every single day of the trial in this

court, and the support will continue beyond the day when she

is finally released to rejoin her family after serving the

sentence you give her today.

It would be an immense help to our family, myself and

Kalliope, if she were granted the opportunity to

self-surrender, for time to explain personally to her daughter

where she is going and for how long and that that day will

eventually come for us to be reunited as a family.

Additionally, to bring some order to worldly affairs and

to prepare to serve our sentence. We are inextricably linked

and our affairs are in a state of disarray. Frankly, I need

her help in dealing with things and stabilizing our family

infrastructure and getting things in order for Kalliope for

the long run that we are facing. Our family has been torn

apart and I'm left out here in the world trying to put the

pieces together while being a father, focussed on our

daughter, and being present there every day, being strong and

loving and not falling apart by the weight on my shoulders.

If I look tired, it's because I am. There have been many

sleepless nights since I was last in this court, and there

will be, undoubtedly, many more.

Her sudden departure has left me sitting with immense

emotional pain. While there may seem to be nothing you can do

to alleviate the deep sadness of myself and daughter, any hope
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you can give me that we will be together again as a family in

a more reasonable number of years than what the prosecutors

call for gives me hope. It helps me to be a better father to

be filled with hope and to share that with my daughter. I

would have never guessed that she would learn to count the

days of the year by counting down the months until her mother

is released from prison, which is unfortunately where we seem

to be now.

I am resolved to be a great father and strive through

every minute of every day to make the best of a situation for

our daughter, for Briana, and for myself.

While in the eyes of this Court Briana and I are domestic

partners, I would say in the eyes of God we are so much more

than that term implies. We are bonded at the highest level,

and we've made a spiritual commitment to be a family together.

That spiritual time transcends the physical separation that we

now live with and is a reminder that this, too, shall pass.

The day will come when this is all behind us, time served, and

we are actually able to move forward together. I pray that

will happen before Kalliope is a teenager, and sooner. I do

not wish for her to grow up feeling like an enemy of the

state, but rather filled with hope for a better future.

I ask that you consider the circumstances of our lives and

exercise grace in sentencing Briana Waters. Without hope and

faith the system crumbles from eternal decay. I wish to
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impart to my daughter a true sense of hope and faith in this

world for the future. I do not wish her to grow up

disillusioned and hopeless but rather optimistic and

visionary. That is what we need for our civilization to

survive and evolve in a healthy way for future generations to

walk this earth.

I ask you to help me give her faith and to give her

personal order to the world she is born into and hope for the

system that governs it that they may develop compassion and

better serve their fellow man, woman, and child.

To this end, I ask finally that you exercise your strength

of discernment and right to pass judgment in this courtroom

with benevolence. I ask that you give a sentence today that

is as lenient as you are able, the mandatory minimum in this

case.

Thank you for the opportunity to address this Court.

THE COURT: Okay.

So I have given everybody a chance to talk. Anything else

that needs to be added here?

MR. FOX: No, Your Honor.

THE COURT: All right. Then the Court has the

unfortunate position, I guess, to sit in the way that we are

called to sit in judgment after some other judgment has been

passed -- of course, that's the verdict of the jury, in terms

of what this defendant has done. That's what the Court is
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here to look at, what that is, and to determine what price, I

guess, is to be paid for that conviction, but also involved in

conviction, of course, is the conduct surrounding the

conviction.

It's hard to talk about this like it's, when you say arson

and leave it there. It doesn't really define what's happened

here. We're talking about the whole matter, all the facts,

all the evidence that the Court heard during the course of

trial to try to fashion, if you will, a sentence based on that

conduct. And the Court's called on its knowledge of what took

place here, as well as what's contained in the presentence

report, and to make that kind of a determination.

The first thing the Court is called on to do is to

determine what guideline range is to be applied to this case,

which doesn't necessarily determine the sentence, but since

the law has changed as to the status of the guidelines, as to

the mandatory and discretionary, as outlined, the Booker and

Fanfan cases and that sort of thing.

In looking at the guidelines dealing with those, the level

of the offense dealing with the conviction, and as well as an

adjustment based on the area of the law that's dealt with

terrorism, and that's where the matter goes from a level 24 to

a 36. Mr. Fox has raised questions as to that because Ms.

Waters does not stand convicted of conspiracy, that that

enhancement should not apply.
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I don't think that you have to have a number of folks to

come to the conclusion as to whether the act would fit within

the description of conduct. So the Court is not of the

opinion that that enhancement shouldn't be. I heard the

evidence, and the facts, as I heard them, convinced me that

when I take the conduct into consideration, that the

conclusion I come to is that that enhancement would apply, and

that's the enhancement that the Court will accept and utilize.

There's another enhancement called adjustment for

obstruction of justice. This one is problematic in some ways

because it talks about that being false testimony in the

course of trial, and the false testimony seemed to come by way

of bringing you to some kind of conclusion that if a person

testifies and a jury rules or decides otherwise, then that

obviously has got to translate to being a lie, I guess, and if

you don't get up and agree with what's being presented, then

you get the enhancement.

That seems to be, as to the right to defend yourself and a

lot of other issues that it goes to, would tend to be

something that would be taken to a level that I don't know how

legally it necessarily can bring it to that conclusion by

saying -- I guess, if you take it, whether or not I don't

believe you are telling the truth, it's automatic it has to be

something else, and when there's no way to really decide that,

other than through some, perhaps, quantum leap of some kind.
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So the Court is not going to grant that enhancement. I

don't think that this is a proper place for it in this

particular situation. And I'm not so sure it makes any

difference, really, because the issue as to the guidelines

being -- I guess would be moot in looking at what the levels

would pencil out to because of the enhancement for the

terrorism, an enhancement that I have granted, that would be a

level of 36, which carries an imprisonment range from 324

months to 405 months.

Well, obviously, the statute has trumped that, and so what

we are talking about now, it doesn't matter, but I guess

record of this thing, and looking at the guidelines, it's

always a matter of mathematics, and the Court is not called on

here to do that. The Court is called on here to look at the

crime that this defendant has been convicted of and determine

what is a fair and appropriate sentence. And that's the

bottom line, I guess the things that we do, to give it that

kind of understanding.

So, for the record, the Court is settling on the guideline

range as being a level 36, criminal history category of VI,

and a range of 324 to 405 months.

Now we get to the issue as to what should be the fair and

just sentence under the situation of this case. Looking at

all of what the Court has heard, all of the relevant conduct,

and that the Susanville matter is another, the due process
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issue for the Court to take that and to make it, and in light

of the fact that nobody testified as to anything along that

line, for the Court to conclude that there was involvement in

that, and for the due process issue, the Court is not

considering that. The Court has before it this particular act

involving the University of Washington that it should

consider, in how it involved and how we talked about disparity

and a lot of sentences involving folks down in Oregon. But

there's also codefendants involved in this case that testified

in this case where there were plea agreements structured under

11(c)(1)(C) that would tell the Court a range, and this range,

what is based on substantial assistance and all of that, but

that is an element of this case for the Court to determine in

terms of punishment being meted out in those cases. If you

talk about it in terms of acts, I suppose under this case, one

act by -- and by that I mean the University of Washington, and

we have Ms. Kolar that pled to three counts of arson and one

attempt. And Ms. Phillabaum, in her plea of guilty, to one

count of arson and a count of destruction of property over

there in Eastern Washington.

So that would mean, seem to be the scenario of the ones

that are coming before this court.

The others, there's been testimony about what happened to

Mr. Rodgers and Mr. Solondz and others that no longer are

available for various reasons. And the Court has all of this
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backdrop to determine the sentence. And I've read all of the

letters, and they are all over the place, like I mentioned.

They talk about some things that I wonder how they could have

knowledge of, but they do speak to what they have known from

Ms. Waters subsequent to the offense date on the charges

brought against her.

The jury heard all of that, and the jury made a decision

as to what to believe, what not to believe based on the

instructions given by the Court, and they found her guilty of

the two counts involving the bombing of the University of

Washington in terms of financial assistance and in terms of

interstate commerce.

And that's what the Court is here to try to determine, and

I've heard the recommendations from Mr. Bartlett saying that

it should be ten, and Mr. Fox saying it should be something, I

guess around a year, based on the Court's ability, in his

opinion, to suspend the mandatory minimum sentence.

Well, I think it's fair to say the Court is bound by,

because I don't find any support that would convince the Court

that it should suspend the mandatory minimum.

So what the sentence is looking at here is whether this

sentence should be ten or whether this sentence should be a

five-year sentence. I think that's the conclusion that we can

draw at this point.

The language, I've gone through these things, and
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everybody, I guess, has been heard by in this matter. Ms.

Waters talks about "missing my daughter" and things that will

go undone because of what she's facing here. The University

of Washington is talking about what they have lost there, and

by account, if you look at all the replacement costs and all

of this, it's still around an amount that probation has been

recommending, it's right around six million dollars. That's

the loss of damage done by what this defendant has been

convicted of. And the Court can't lose sight of that.

So, the Court has considered this and wrestled with this

case for a long time and in a lot of respects in terms of

trying to fashion what I would consider a fair sentence based

on what's been submitted, and trying to do what Mr. Fox has

said, to make a fair and just sentence based on all of the

participation. Believe me, that is not the easiest job in the

world to go through and give credit for what they do.

Sometimes you wonder whether there is an answer in terms of

how you meet this definition of fair and just. How do you

really meet it without going through a lot of your own

experiences, trying to make sense out of no sense, and how you

do what you do because you hope to change something that you

probably won't change.

I don't know where all the insight will come from, but you

have to call on what you know in terms of making evaluation of

people, of the world, and all of that.
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Sometimes it brings about understanding, but it doesn't

make an excuse for anything. So after you get through all of

that, you have to then say, your involvement, you stand

convicted, and any time you take any kind of action, there are

always consequences for it. So when you step out in that

direction, that's what you face.

I think that's what happened here, and I guess the rest of

it is up to the Ninth Circuit to determine whether or not the

ultimate issue was answered. As Mr. Fox said, they intend to

appeal, and maybe those are the folks that can sit there and

make a decision different than what was made here.

I know what I heard, and I know how the evidence went, and

to that extent this Court thinks a fair sentence in this

matter would be a period of six years. And that's what the

Court is going to set in terms of this defendant. This is the

sentence that you will have to serve. And the Court orders

restitution in the amount set forth in the presentence report,

and I see that this would be a figure that is justified under

the facts, as I understand about this case.

There will be a supervised release period of three years

following that sentence; that you will pay the special

assessment in the amount of $200. No fine will be imposed

under the circumstances of this case.

Once you are released, you will be supervised by

probation, which means you are to not violate any of their
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rules and regulations, nor any federal, state, or local laws.

You will cooperate in collection of DNA as directed by

probation.

You are not to have a firearm or any other destructive

device.

That you will submit to search of your person, your

vehicle, your residence, and that sort of thing, to make sure

you are in compliance.

I mentioned the restitution.

You are to provide probation with access to your financial

situation, which will show your assets and your federal income

tax return and give them the ability to make credit checks and

that sort of thing.

You are to maintain a single checking account in your own

name or with your husband, and work with them so they can

understand where your assets may be and where they may lie,

and have an account that would give them the right to do that

so they can make these kind of checks and make those kind of

determinations.

If you were to maintain any business enterprise of any

kind, you are to make available to probation the nature of

that, any documents that may go to that enterprise.

You are to expose all of your assets and liabilities to

probation and not transfer or waste, give away any property,

as there is an issue of restitution here that you are to
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attempt to address.

If you have a personal computer of any kind -- I know

Mr. Fox has raised this question -- you are to open that for

inspection to make sure that it does not violate any

conditions as set down by the Court in terms of probation, and

to let them know what's going on there and software that may

be utilized in this matter, as you know this case involved the

use of computers and communiqués and that sort of thing, if it

involves the conduct here that we are talking about. You are

going to have to consent to them monitoring that. Upon

request, they can request, and you are to let them see that,

and they can retrieve what data may be there and that sort of

thing.

You are prohibited from incurring any major debt

obligation without approval of probation. And by that I don't

mean the necessaries like food and shelter. But if you start

buying things out of the ordinary that are big ticket items,

so to speak, you are to notify them of your intent to do that,

and do that, of course, prior to any purchase of that kind.

You are to cooperate and furnish financial information, a

statement that may be required by the Internal Revenue

Service, taxes owing and due, if that become an issue in this

case.

You are to have no contact with the coconspirators of this

in Washington or in Oregon, members of this organization and
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group that have been testified to, and you heard all the names

and places and things that came up during the course of trial.

As I indicated, you have no ability to pay a fine, and no

fine will be imposed.

A special assessment amount of $200 will be imposed as to

count 5 and 7.

It's been mentioned about recommending where you will be

housed. I have no problem with the recommendation being made.

If Dublin is the place, that's fine. I expect that the Bureau

will take care of everything as to not have this in a way that

would be a conflict of some kind. I don't know the size of

this institution, whether two could coexist down there or

whatever the case may be. I don't know about that, until

there's a problem. But the recommendation will be made that

at least you should be housed at a place close to home where

you can have family and visit your daughter and that sort of

thing. So that's the intent of the recommendation, so you

have that right and you get the opportunity to do that.

Were there any other requests that I need to address at

this time?

MR. FOX: Your Honor, I had asked the Court to, since

the Court's not finding the Susanville incident, I would ask

that the Court, that those references to that incident be

deleted from the presentence report, or that --

THE COURT: I think it should be, because the Court
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is not making a finding one way or another. So it won't be

confusing in any kind of way in the matter, I will ask

probation to take any reference to that out.

MR. FOX: The other proposal that I had was to remove

references to joining the family, the conspiracy, because

that's not what she was convicted of.

THE COURT: That's part of the relevant conduct that

we talked about. The Susanville bombing, I'm going to, from a

due process standpoint; not that.

MR. FOX: Okay. So Mr. Thomas will -- thank you.

The other issue, Your Honor, with regards to Dublin. I

had proposed an order that I filed the other day that sets out

the reasons, and under the statute, asking the BOP to explain

to the Court why they wouldn't honor that. I think statute

says if the BOP doesn't honor it, they should say --

THE COURT: I think they will tell me if they somehow

can't accommodate me on my recommendation, so I don't think I

need an order to that.

MR. FOX: Then we will just attach it to the

judgment, the -- the designation is going to be handwritten

in?

THE COURT: It will be in the judgment itself;

recommending that, if at all possible, that that's where she

will be housed.

MR. FOX: Okay.
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THE COURT: Or at least in an alternative way, that

any facility close to her home would be considered, you know.

I don't know if Dublin or some other place may serve the

purpose, but I don't want to start running the Bureau of

Prisons. So they understand what I'm saying, and so I will

let them do their job.

MR. FOX: The final issue -- I don't know if the

Court wants to deal with this now, or deal with it in context

with our motion for an appeal bond, that Ms. Waters be allowed

to self-surrender.

THE COURT: I don't think that's an issue before the

Court today. I say it for this reason. Nothing has been done

that would change what came down from the Ninth Circuit.

Until something that would give some reason to change that, I

would say that it will stand as entered.

So unless something's come before the Court that would

cause this Court to revisit something in terms of new

evidence -- the only thing that has been raised by way of

letter or otherwise is that you mentioned about Ms. Kolar and

this file ending. Well, the Court hasn't disposed of any

issue there, so nothing has changed. Nothing that the Court

knows of has changed.

MR. FOX: May I address that and address the appeal

bond issue at the same time?

Your Honor, there's two issues. One is self-surrender and
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the other is our motion that I filed for an appeal bond. I

understand what the Court just said, nothing's changed. I

believe, Your Honor, that there are a few circumstances which

have changed.

Under the government's calculations, Ms. Waters was

looking at --

THE COURT: What you are asking me now is probably to

do a detention hearing, and the Court's not -- there was no

detention hearing set for today.

MR. FOX: I filed a motion, a separate motion for

appeal bond.

THE COURT: I understand, but what would that be

based on if I have gone through a detention motion saying

that --

MR. FOX: Can I explain to the Court what I believe

the changes are?

THE COURT: All right.

MR. FOX: The Court has now imposed a sentence of six

years.

THE COURT: Right.

MR. FOX: The government before was saying the

maximum sentence was 40 years. That's what their memo said.

There's been a change of circumstances in that any motivation

to flee is a lot less given the Court's actual sentence as

opposed to what the government was saying Ms. Waters was
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facing. So we believe there has been a change in

circumstances. Ms. Waters is now facing six years in prison,

not the 40 that the government -- I believe it was 20, but

they were saying it was 40.

Secondly, the 250 letters were not part of the record when

the case went up to the Ninth Circuit, and those do show

extensive community ties that speak to the fact that Ms.

Waters is not a flight risk. Those hadn't been submitted

before, and we are offering those in support of our motion

both for release pending self-surrender so she gets the

additional credits with the Bureau of Prisons for

self-surrender, and for release pending appeal.

Then with regards to the information about Ms. Kolar, it

is powerful evidence that will be the basis of a Rule 33, or

2255 petition. It changes substantially her position with

regards to the likelihood of success on appeal. I know the

Court hasn't ruled on it yet, but I'm sure the Court is

probably going to get briefing on it. But the fact is, is

that this is a material witness who admittedly was deceptive

in her testimony by a key piece of evidence. That evidence

was a key issue at trial, and we think that ultimately Ms.

Waters' chances for reversal on appeal are greater now.

So there are those three categories of changed

circumstances. So I'm asking that the Court release her

pending self-surrender, or to release her pending appeal for
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those three reasons, in addition to everything else we argued

before.

THE COURT: I understand. All right.

Anything from the government on this matter?

MR. FRIEDMAN: If you would like me to, Your Honor.

Your Honor, as the Court knows, we have addressed the

issue of Ms. Waters' detention or release on bond at

tremendous length since her conviction. It was litigated

fully in front of Judge Arnold, it was litigated fully in

front of this court, and then briefed and litigated in front

of the Ninth Circuit.

The Ninth Circuit -- at each level Ms. Waters was ordered

detained, and the Ninth Circuit affirmed the findings below.

First off, there's two statutes that apply -- and the

Court's familiar with this, I know -- but 18 U.S.C. 3143, to

be eligible for detention. Now that Ms. Waters has been --

and released, to be eligible for release. Now that Ms. Waters

has been convicted of a crime of violence, she is not eligible

for release. The statute provides that she shall be detained.

So it's an even higher standard than applied before. It's

mandatory, and the Court is required to detain her under that

statute.

That takes us to 18 U.S.C. 3145(b), which allows for

release if she shows extraordinary circumstances.

When this started, the extraordinary circumstance was that
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she's a mother of a young child and she was going to be

separated suddenly from the child. That argument was rejected

by both this Court and the Ninth Circuit, and by today we

actually heard Mr. Fox say that there is nothing extraordinary

about that, that's ordinary.

Now we have a different extraordinary circumstance, the

likelihood of success on appeal. This Court found that that

wasn't the basis, that there was no likelihood of success on

appeal. The Ninth Circuit affirmed that finding. The new

piece of information to which Mr. Fox refers is a minor point.

There's no evidence that Ms. Kolar was deceptive to this

Court. There's been no showing of a likelihood of success on

appeal on that, and so Ms. Waters should remain detained.

If it were truly important, I expect -- when it first came

up, the Court will remember that the defense said dramatic new

development; we need to continue sentencing. After about a

week to think about it, they said, no, let's go ahead with

sentencing; we will deal with that somewhere down the line. I

think that tells you how important it is and how likely there

is to be a reversal on appeal based on that.

THE COURT: Well, I think the issue here is not for

the Court to take up today. Now, you have the right to file

your motion.

MR. FOX: I do, Your Honor.

THE COURT: I understand, but the motion is not set
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for the Court today because obviously we talked about

something that I was going to take up. You are telling me the

way, what that means.

At this point in time, just from what you say, it's a

critical piece, and it may tend to tell the Ninth Circuit that

they are going to reverse on it. I don't necessarily come to

that conclusion, but I haven't heard from everybody on that

and how to look at that. She wasn't the only person that

testified. So it was only a piece of evidence utilized in the

case. So the Court has to considered all of that.

So what I'm saying, the Court is not going to get into

that today because that wasn't set on the docket to be visited

because I want -- it's not briefed. I may even want

testimony; I don't know. I don't know exactly what you have

to present other than the way that it was written to me in

letter form. I know it's been filed, but it wasn't filed and

set on the docket to be heard today.

MR. FOX: I guess I'm asking the Court, rather than

having a separate hearing, I'm asking the Court to make a

ruling today.

THE COURT: I will stand by the ruling I already

made, and what the Ninth Circuit already made. It's denied.

And then it could be reopened, but you need to get me

something to show me, for the Court to decide whether

something like that will change my view in terms of an entry
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they got as to whether or not something new has come into the

case. The letters don't really add that element that you're

talking about from what the statute has required. The letters

don't do that. They help me to determine what the appropriate

sentence should be, but not the issue that you're raising.

That's totally a legal issue.

All right. So if there's a judgment to that extent, I

will sign it.

MR. FOX: Let me just review it, Your Honor.

MR. BARTLETT: I have provided it to Mr. Fox to

review, Your Honor.

MR. FOX: Your Honor, I will pass forward the

judgment.

THE COURT: Mr. Fox, are you satisfied now that the

judgment being presented comports with the Court's order?

MR. FOX: It does, Your Honor.

THE COURT: With that understanding, this is the

judgment that I'm signing.

Ms. Waters, this means this is the sentence that you will

be under. But if you feel for any reason I have imposed an

illegal or unconstitutional sentence upon you, you have a

right to appeal this judgment. And since I am signing it here

today, if you intend to do that, you need to do it within ten

days of today's date. And that's --

THE CLERK: June 19th.
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THE COURT: Okay, within ten days of today's date,

June 19.

Anything else?

MR. BARTLETT: No, Your Honor.

THE COURT: This will be the judgment.

Court is at recess.

(Recessed at 11:45 a.m.)

C E R T I F I C A T E

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/ Julaine V. Ryen June 25, 2008

JULAINE V. RYEN Date