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Judge Leighton

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, ) NO. CR05-5828RBL

)

v. ) GOVERNMENT’S SENTENCING

) MEMORANDUM

BRIANA WATERS, )

)

Defendant. )

_________________________________)

Comes now the United States of America, by and through Jenny A. Durkan,

United States Attorney for the Western District of Washington, and Andrew C. Friedman

and Thomas M. Woods, Assistant United States Attorneys for said District, and files this

Government’s Sentencing Memorandum.

I. INTRODUCTION

Defendant, Briana Waters, is before the Court for sentencing following her guilty

pleas to conspiracy, in violation of 18 U.S.C. § 371, possessing an unregistered firearm,

in violation of 26 U.S.C. § 5861(d), arson, in violation of 18 U.S.C. § 844(i), and using a

destructive device, in violation of 18 U.S.C. § 924(c). Waters is scheduled to be

sentenced at 9:00 a.m. on June 22, 2012.

Waters’ convictions are the result of her participation in two arsons committed on

behalf of the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF),

namely, (1) the May 21, 2001, arson of the University of Washington Center for Urban

Horticulture, and (2) the October 15, 2001, arson of the Bureau of Land Management,

Litchfield Wild Burrow & Horse Corrals, in Susanville, California. The Center for Urban

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 1

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Horticulture arson, in particular, was a horrific crime. It endangered firefighters who

fought to control the towering blaze. It destroyed an entire building devoted to the study

of botany, resulting in more than $6 million in damage. It set back the research and

careers of countless professors, researchers, and students, who saw years of work

consumed in flames. And it terrorized occupants of the building, many of whom suffered

long-lasting emotional damage (in some cases, so severe that it caused them to move

elsewhere or change career).

Following her initial conviction at trial, and the reversal of that conviction by the

Ninth Circuit based upon an evidentiary ruling, Waters agreed to cooperate against the

last remaining defendant in the Center for Urban Horticulture arson, Justin Solondz. As a

result, the parties entered into an agreement under which they both have agreed to

recommend a sentence of 48 months’ imprisonment, a recommendation in which the

Probation Office also has joined. As explained in greater detail below, this sentence

reflects the fact that Waters originally was sentenced to 72 months, and should receive

some benefit for cooperating. This sentence also punishes Waters proportionately to the

other participants in the conspiracy, taking account of Waters’ role in the conspiracy (and,

specifically, the fact that Waters participated in two arsons).

Any lesser sentence would fail to reflect the fact that Waters’ sentence necessarily

should be measurably longer than her co-defendant Lacey Phillabaum’s 36-month

sentence, since (1) Phillabaum participated in only one arson, but Waters participated in

two; (2) unlike Phillabaum, who accepted responsibility for her crimes immediately,

Waters went to trial, perjured herself at that trial, and presented a defense that she had

been framed including by the FBI (which was particularly harmful, given that it likely

reinforced many of Waters’ supporters’ beliefs that authorities, and, in particular, law

enforcement, cannot be trusted); and (3) Waters deserves a lesser benefit than Phillabaum

based upon the matters, and for the reasons, described in the Government’s Filing

Concerning Defendant’s Sentencing. As a result, the Court should sentence Waters to 48

months’ imprisonment, as provided by the Plea Agreement.

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 2

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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II. FACTS

In 2001, Waters was acquainted with William Rodgers, one of the leaders of a

group that previously had committed multiple arsons on behalf of ELF and ALF. See

Plea Agreement ¶ 7. Rodgers told Waters that he was planning to commit an “action”

targeted at the office of Professor Toby Bradshaw, a Professor at the University of

Washington Center for Urban Horticulture, and asked Waters to participate. See id.

Waters understood that the motivation for this action was that Professor Bradshaw

supposedly was involved in genetic engineering of poplar trees, research that Rodgers and

Waters opposed because they believed it harmed the environment. See id. In fact,

Professor Bradshaw’s research did not involve genetic engineering, but rather involved

traditional cross-breeding of trees.

Waters agreed to participate, and attended a series of meetings with Rodgers,

Jennifer Kolar, Lacey Phillabaum, and Waters’ then-boyfriend, Justin Solondz, during

which they made plans to set fire to Professor Bradshaw’s office. See id. Waters agreed

to obtain a car to be used for transportation to and from the arson, and subsequently

persuaded an unwitting relative to rent a car for Waters. See id. Waters also permitted

others, including Solondz, to manufacture incendiary devices in the garage of a house at

which Waters was living. See id.

On the evening of May 20, 2001, Waters and her co-conspirators drove to the

Center for Urban Horticulture with the incendiary devices Solondz had made. See id. In

the early morning hours of May 21, 2001, Waters hid in some nearby bushes and served

as a lookout, while three of the others walked to the Center for Urban Horticulture and

used the incendiary devices to start a fire in Professor Bradshaw’s office. See id. The

devices produced a huge fire that destroyed the entire Center for Urban Horticulture,

causing more than $6 million of damage. See id. The towering fire endangered

firefighters, destroyed a substantial portion of a library containing rare horticulture books,

and destroyed substantial samples of endangered plant species contained in the Center for

Urban Horticulture. It also had an enormous impact on professors and students working

in the building, setting their research back years, causing some even to change careers,

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 3

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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and causing many to suffer long-lasting emotional impact, including fear of further

attacks.

Unlike Phillabaum, who saw the results of the arson, and turned away from

further such crimes, Waters participated in another arson a few months laters.

Specifically, in September 2001, Waters participated in a horse release and arson at the

Bureau of Land Management, Litchfield Wild Burro & Horse Corrals in Susanville,

California. See id. Waters and her coconspirators committed this arson because they

objected to the BLM’s treatment, and in some cases slaughter, of wild horses. The

Litchfield Wild Burro & Horse Corrals arson was the last arson committed by Rodgers’

ELF/ALF cell. Perhaps as a result, it also marked Waters’ last participation in ELF/ALF

arsons.

III. PRESENTENCE REPORT

The Government has no objection either to the facts, or the calculation of Waters’

sentencing range, set forth in the Presentence Report. The Presentence Report calculates

Waters’ sentence using the November 2011 Guidelines Manual, since this results in the

same offense level as the Sentencing Guidelines in effect at the time of Waters’

sentencing. See USSG § 1B1.11 (court should apply the Guidelines Manual in effect on

the date that offense of conviction was committed where necessary to avoid violating the

ex post facto clause of the United States Constitution); PSR ¶ 22.

A. The Presentence Report Correctly Applies a Base Offense Level of 24.

As the Presentence Report notes, Waters’ offense is governed by Section 2K1.4 of

the Sentencing Guidelines. PSR ¶ 25. Section 2K1.4, provides that a defendant has a

base offense level of 24, if the defendant’s crime caused the destruction of “a state or

government facility,” or “a place of public use,” or if the defendant’s crime created “a

substantial risk of death or serious bodily injury.” See USSG § 2K1.4(a)(1)(A), (B).

Waters’ crime qualifies under all of these tests. The Center for Urban Horticulture, which

is part of the University of Washington, is both a state government facility and a place of

public use. The Litchfield Wild Burro & Horse Corrals, which belonged to the Bureau of

Land Management, is a federal government facility. And the arson of the Center for

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 4

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Urban Horticulture created a substantial risk of death to responding firefighters. For all

of these reasons, the Presentence Report correctly recommends a base offense level of 24.

See PSR ¶ 25.

B. The Presentence Report Correctly Applies an Adjustment because Waters’

Crime is a “Federal Crime of Terrorism.”

The Presentence Report correctly applies an adjustment under Section 3A1.4 of the

Sentencing Guidelines because Waters’ crime is a “federal crime of terrorism.” See PSR

¶ 27. Although Waters’ crime is substantively different from, say, the attacks of

September 11, 2001 -- a fact recognized in the Government’s recommendation of a

sentence far below Waters’ guidelines sentencing range -- it is clear that the crime still

falls within the definition of a “federal crime of terrorism.” Judge Burgess applied this

adjustment in sentencing two of Waters’ co-defendants, Phillabaum and Kolar, as well as

Waters herself, at her original sentencing, and this Court has applied the adjustment in

sentencing Solondz. See also United States v. Thurston, 2007 U.S. Dist. LEXIS 38185

(D. Ore. May 21, 2007), aff’d, 537 F.3d 1100 (9 Cir. 2008) (applying the adjustment to

th

other members of Rodgers’ ELF/ALF cell who targeted government buildings in States

other than Washington); United States v. Christianson, 586 F.3d 532, 539 (7 Cir. 2009)

th

(applying adjustment against another member of ELF/ALF).

Section 3A1.4 of the Sentencing Guidelines provides that, where a defendant is

convicted of “a felony that involved, or was intended to promote, a federal crime of

terrorism” the defendant’s offense level should be increased by 12 levels, and the

defendant’s criminal history category should be increased to Category VI. USSG

§ 3A1.4. The commentary to Section 3A1.4 provides that the term “‘federal crime of

terrorism’ is defined at 18 U.S.C. § 2332b(g).” Id. comment. (n.1). That statute defines a

federal crime of terrorism to “mean[] an offense that -- (A) is calculated to influence or

affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct; and B) is a violation of” any of a number of statutes, including 18

U.S.C. § 844(i). 18 U.S.C. § 2332b(g)(5).

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 5

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Waters meets both prongs of this definition. First, Waters has pled guilty to

violating 18 U.S.C. § 844(i), which is one of the qualifying predicate statutes. Second,

her crime was “calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct.” Kolar testified that

the Center for Urban Horticulture was selected as a target because “th[e] group as a whole

had agreed on trying to pick a single topic to focus on, that we thought might be

winnable, and genetic engineering was decided to be that topic” and because “Toby

Bradshaw was a researcher there doing genetic engineering.” Tr. at 1333-34.

The communique issued after the arson confirms these facts. That communique

(which also claimed responsibility for the simultaneous arson of Jefferson Poplar Farm)

read

Part 1

At 3:15 am on Monday, May 21, the research of Toby

Bradshaw was reduced to smoke and ashes. We attacked his

office at the University of Washington while at the same time

another group set fire to a related target in Clatskanie,

Oregon, 150 miles away.

Bradshaw, the driving force in G.E. tree research,

continues to unleash mutant genes into the environment that is

certain to cause irreversible harm to forest ecosystems.

After breaking into Bradshaw’s office at the Center for

Urban Horticulture, we inspected the building for occupants

and set up incendiary devices with a modest amount of

accelerant. Although we placed these devices specifically to

target his office, a large portion of the building was damaged.

This extensive damage was due to a surprisingly slow and

poorly coordinated response from the fire department, which

was evident by their radio transmissions.

As long as universities continue to pursue this reckless

“science,” they run the risk of suffering severe losses. Our

message remains clear: we are determined to stop genetic

engineering.

From the torching of Catherine I’ve’s office at

Michigan State University to the total incineration of GE

seeds at the D & PL warehouse in Visalia, CA, 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.

ELF

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 6

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Part 2

Early Monday morning, May 21, we dealt a blow to

one of the many institutions responsible for massive hybrid

tree farming in the Northwest. Incendiary devices at Jefferson

Poplar in Clatskanie, Oregon, burned an office and a fleet of

13 trucks. Unfortunately, due to a design flaw, one targeted

structure was left standing. We torched Jefferson Poplar

because hybrid poplars are an ecological nightmare

threatening native biodiversity in the ecosystem. Our forests

are being liquidated and replaced with monocultured tree

farms so greedy, earth raping corporations can make more

money.

Pending legislation in Oregon and Washington further

criminalizing direct action in defense of the wild will not stop

us and only highlights the fragility of the ecocidal empire.

As we wrote in Clatskanie “You cannot control what is

wild.”

ELF

Earth Liberation Front

The Center for Urban Horticulture was owned and occupied by the University of

Washington, a state university – indeed, the state’s flagship university. Education is a

core governmental function. As a result, the Center for Urban Horticulture was part of

state government. Professor Bradshaw’s work as a faculty member similarly was part of

government. This is even more clearly the case because Professor Bradshaw testified that

much of his research was funded by grants from the federal Government. By targeting

the Center for Urban Horticulture to attack Professor Bradshaw’s work, Waters and her

co-conspirators clearly intended either to influence through intimidation, or to retaliate

against, government conduct. And the resulting communique not only acknowledged that

Bradshaw and his research were targeted, but contained the defiant claim that even

pending legislation would not stop the perpetrators of the Center for Urban Horticulture

and Jefferson Poplar Farm arsons.

For all of these reasons, Waters and her co-conspirators’ offense was “calculated

to influence or affect the conduct of government by intimidation or coercion or to retaliate

against government conduct,” 18 U.S.C. § 2332b(g)(5)(A), and the Presentence Report

correctly recommends that the Court apply the enhancement.

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 7

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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C. The Presentence Report Correctly Declines to Apply a Downward

Adjustment based upon Waters’ Role in the Offense.

Waters has objected to the fact that the Presentence Report does not recommend a

downward adjustment based upon Waters’ role in the offense. See PSR ¶ 28. Section

3B1.2 provides that a defendant should receive a four-level downward adjustment where

the defendant was a minimal participant, or a two-level downward adjustment where a

defendant was a minor participant, in criminal activity. USSG § 3B1.2. To qualify for

even the latter adjustment, a defendant must be “less culpable than most other

participants.” Id. comment. (n.3).

Waters does not meet this test. Waters attended planning meetings, provided a

location for Solondz to build incendiary bombs, arranged for a rental car, served as a

lookout during the arson (including radioing her co-conspirators to warn them of a

passing police car), and drove a getaway car to pick up her co-conspirators. Waters’ role

was far larger than that of Phillabaum, who merely attended planning meetings and

helped carry material to the Center for Urban Horticulture. It also was larger than that of

Kolar, who merely attended planning meetings and cut the glass to Professor Bradshaw’s

office. Thus, Waters was not “less culpable than most other participants,” id., and the

Presentence Report correctly declines to apply a downward adjustment for Waters’ role.

D. The Presentence Report Correctly Applies an Adjustment for Obstruction of

Justice.

The Presentence Report correctly applies a two-level upward adjustment under

Section 3C1.1 of the Sentencing Guidelines for obstruction of justice. See PSR ¶ 29.

Section 3C1.1 provides for a two-level adjustment “[i]f the defendant willfully obstructed

or impeded, or attempted to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense.” The guideline

commentary expressly provides that this adjustment applies where a defendant commits

perjury. USSG § 3C1.1 comment. (n.4(b)). To impose the adjustment, the Court must

find that (1) Waters gave false testimony at her 2008 trial, (2) concerning a material

matter, (3) with the willful intent to provide false testimony, rather than as a result of

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 8

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94

(1993). All three elements are present here.

At trial, Waters repeatedly denied any involvement in the Center for Urban

Horticulture arson. For example, she was asked

Q. You’ve heard testimony here from Lacey Phillabaum,

from Jennifer Kolar, that you were involved in the

arson that they committed at the University of

Washington in May 2001. . . .

. . . .

Q. Were you in any way involved in that arson?

A. Absolutely not.

Tr. at 2371; see also Tr. at 2413 (Waters denied committing any crime with William

Rodgers); tr. At 2419 (Waters denied committing any crime with Jennifer Kolar).

Waters has subsequently admitted in her plea agreement that this testimony was

false, see Plea Agreement ¶7, and there can be no doubt but that it was both material and

willful. As a result, the PSR correctly recommends a two-level increase in Waters’

offense level for obstruction of justice.

E. The Presentence Report Correctly Recommends a Downward Adjustment for

Acceptance of Responsibility.

Finally, the Presentence Report correctly recommends that Waters’ offense level

be decreased by three levels based upon Waters’ acceptance of responsibility, pursuant to

Section 3E1.1 of the Sentencing Guidelines. See PSR ¶ 35.

Based upon the calculations discussed above, the Presentence Report correctly

recommends that the Court find that Waters’ total offense level is 35, that her criminal

history category is VI, and that her Sentencing Guidelines range is 292-365 months. See

PSR ¶¶ 35, 60.

IV. SENTENCING RECOMMENDATION

As agreed to in the Plea Agreement, the Government recommends that the Court

sentence Waters to a term of imprisonment of 48 months (a recommendation in which the

Probation Office also has joined). Although this sentence represents a drastic downward

departure from Waters’ Sentencing Guidelines range, the Government entered into a Plea

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 9

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Agreement under which it has agreed jointly to recommend this sentence as a means to

balance two competing considerations.

First, Judge Burgess sentenced Waters to only six years’ imprisonment following

her original conviction. The Government believes that that six-year sentence likely

created a cap on Waters’ sentencing exposure following a retrial. Because the

Government believed it required Waters’ cooperation in order successfully to prosecute

Solondz (who was scheduled to be returned from China in time for Waters’ retrial), the

Government had to offer Waters something less than six year’s imprisonment.

Second, the Government was determined to act consistently compared to the two

other defendants already sentenced in connection with the Center for Urban Horticulture

arson, namely Phillabaum, who was sentenced to 36 months’ imprisonment, and Kolar,

who was sentenced to 60 months’ imprisonment. As explained below, in order to fairly

punish Waters, the Government concluded that Waters’ sentence necessarily had to be at

least 48 months. Any lesser sentence would unfairly benefit Waters relative to

Phillabaum, who deserved a materially-lesser sentence than Waters in every respect.

The Government believes that a 48-month sentence is consistent with the factors

set forth in 18 U.S.C. § 3553(a):

A. The Nature and Circumstances of the Offense

As an initial matter, there can be no dispute that Waters played a substantial role in

a serious crime. Waters participated in a series of meetings to plan the arson. Waters

allowed her then-boyfriend, Solondz, to use a garage in which she was living to build

incendiary bombs for the arson. Waters tricked her cousin into renting a car that Waters

and her co-conspirators used to commit the arson. And, Waters served as a lookout

during the arson, including radioing to her co-conspirators to warn them of a passing

police car.

There also is no dispute that the arson was a terrible crime. Based on their

erroneous conclusion that Professor Bradshaw was performing genetic engineering of

poplar trees, Waters and her co-conspirators burned a large university building devoted to

botanical research and teaching. In doing so, they created a huge fire that easily could

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 10

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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have injured or killed either students (who often worked and slept in the building

overnight) or responding firefighters (for whom this was the largest -- and one of the most

dangerous -- fires they battled during the entire year of 2001).

Waters and her co-conspirators caused more than $6 million of damage to the

University of Washington. They caused even greater professional, psychological, and

other non-economic harm to the occupants of the Center for Urban Horticulture. To take

but three examples:

-- C.C., a graduate student, submitted a victim impact

statement that refers to “the years [her] graduation has

been delayed” because of the destruction of her

research and her laboratory, and that states that she has

“irreversibly lost [] a basic trust of people.”

-- L.C.-S., a faulty member, submitted a victim impact

statement that indicates that the arson resulted in the

“destruction of [her] lab research career,” and that she

was “effectively forced to change jobs because [she]

could no longer continue to do what [she] had come to

UW and CUH to do.” The statement also notes that

the arson “terrified [her] children, who were 6 and 11

at the time.”

-- S.R., another professor, submitted a victim impact

statement that indicates that she lost a year of work,

and easily could have failed to get tenure, as a result of

the fire. “Graduate students lost their work and had to

postpone job offers and additional educational

opportunities.” S.R. notes that “[t]his violent act

devastated us and . . . we, as individuals, will never

fully recover. They took years away from us and

changed how we look at our fellow human[] beings.”

S.R. also began having panic attacks immediately after

the fire, and, ultimately, moved because of the fire

because her residence was listed in the phone book.

In sum, Waters’ crime had a devastating -- and fully foreseeable -- impact on an academic

community, none of the members of which did anything to deserve that impact.

Moreover, unlike Phillabaum, who withdrew from the conspiracy after the Center

for Urban Horticulture arson, Waters participated in another arson later in 2001, namely,

the arson of the Litchfield Wild Burro & Horse Corrals. Thus, Waters’ criminal conduct

cannot credibly be characterized as a one-time mistake -- rather, it was repeated and

egregious.

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 11

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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B. Waters’ History and Characteristics

Although Waters appears to be an admirable person in certain respects (as

witnessed by the number of letters submitted on her behalf), the circumstances of this

case raise substantial questions about Water’s history and characteristics.

In a letter to the Court, Waters repeatedly seeks to excuse her conduct as that of a

naive and immature person 11 years ago. Waters’ characterization is not entirely fair.

Her criminal conduct did not stop in 2001. Rather, it continued until 2008. Each of the

other members of Rodgers’ ELF/ALF cell who was arrested (except Rodgers, who

committed suicide) pled guilty and either (1) agreed to cooperate or (2) agreed to a

limited form of cooperation in which they gave proffers describing their own criminal

conduct, but refused to identify or cooperate against others. Waters, by contrast,

originally went to trial and obstructed justice by presenting a defense premised upon her

own perjury.

Moreover, Waters’ defense was characterized by repeated groundless accusations

of Government misconduct and judicial bias. Thus, Waters repeatedly alleged that

Federal Bureau of Investigation Special Agents and Assistant United States Attorneys

suppressed evidence, lied, and obstructed justice. Significantly, Judge Burgess repeatedly

found “no evidence of government misconduct.” See, e.g., Order Affirming Magistrate

Judge’s Detention Order, at 2 (Mar. 28, 2008). Waters’s response, however, was to file a

Ninth Circuit brief alleging “consistently biased rulings” by Judge Burgess.

Waters’ defense also was characterized by vicious attacks on cooperating

witnesses. For example, defense counsel outed one of the government’s witnesses, Kolar,

on the stand, and called another witness, Phillabaum, an “unprincipled slut.” Waters

necessarily was complicit in this defense strategy, since her uncorroborated testimony that

Kolar supposedly had romantically approached Waters, and that Phillabaum supposedly

had had an affair with Solondz (facts denied by both Kolar and Phillabaum), provided the

only supposed basis for these attacks.

Waters’ obstruction of justice culminated in her own testimony. Waters perjured

herself during that testimony, both by making general claims of innocence and by denying

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 12

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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specific facts that were established both by the testimony of other witnesses and by

corroborating documentary evidence. Waters’ obstruction of justice and perjury were not

only fresh crimes committed by Waters in 2007, they came at great cost to our system of

justice. Waters and her counsel appeared to be playing to an audience that is extremely

skeptical of government and law enforcement. By falsely claiming to be innocent, and by

making what she knows to be groundless claims of misconduct, Waters fueled

perceptions of injustice.

Waters also contributed to an environment in which others are likelier to commit

fresh crimes of violence. One of the arsons committed by Waters’ co-conspirators was

the March 2001 arson of Joe Romania Chevrolet in Eugene, Oregon. That arson was

committed “in support” of two other persons who had committed an ELF arson at Joe

Romania Chevrolet in 2000 and who were on trial for that arson in March 2001. The

government does not believe that it is a coincidence that a major ELF arson -- in fact, the

largest ELF arson in the State of Washington since the Center for Urban Horticulture

arson -- took place in Snohomish County, Washington, while the jury was deliberating in

Waters’ case. By falsely protesting her innocence, and by constantly claiming

government and judicial misconduct, Waters fueled an environment in which such crimes

continue to occur.

Waters’ actions in engaging in two separate arsons, months apart, and her

willingness to go to any lengths -- including perjury, vicious attacks on witnesses, and

unfounded accusations of government misconduct -- all to avoid being held responsible

for her own crimes, all raise significant questions about Waters’ history and

characteristics.

C. The Sentencing Range.

As noted above, Waters’ advisory sentencing range under the Sentencing

Guidelines is 235-293 months. This range is based in substantial part upon the fact that

Waters’ crime qualifies as a “federal crime of terrorism.” The Government is

recommending a sentence that is far below this range, based, in part, upon the recognition

that Waters’ crime, while extremely serious, is qualitatively different from crimes of

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 13

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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terrorism that are intended to result in injury or death. Nonetheless, Waters’ high

sentencing range counsels a substantial sentence.

D. The Need to Avoid Unwarranted Sentence Disparities among Defendants.

As noted above, the need to avoid unwarranted sentence disparities among

defendants requires a sentence no less than the 48 months that the Government is

recommending. Of the five participants in the Center for Urban Horticulture arson, Judge

Burgess and this Court already have sentenced three. (The fourth, Rodgers, committed

suicide following his arrest.)

-- Solondz, the last to be arrested and the defendant who

had the most significant role after Rodgers – including

making the incendiary devices used to burn the Center

for Urban Horticulture – received a sentence of 72

months.

-- Kolar, who participated in three arsons, and who

received a benefit based upon the matters discussed in

the Government’s Filing Concerning Defendant’s

Sentencing, received a sentence of 60 months’

imprisonment.

-- Phillabaum, who participated only in the arson of the

Center for Urban Horticulture, and who received a

benefit based upon the matters discussed in the

Government’s Filing Concerning Defendant’s

Sentencing, received a sentence of 36 months’

imprisonment.

In order to avoid unwarranted disparity, Waters clearly should receive a sentence

materially-longer than Phillabaum. Unlike Phillabaum, who pled guilty promptly, Waters

went to trial and presented a defense based upon elaborate perjury. Unlike Phillabaum,

who committed only one arson, Waters committed two. And Phillabaum clearly deserved

a greater benefit than Waters based upon the matters discussed in the Government’s

Filing Concerning Defendant’s Sentencing.

Indeed, one could well argue that Waters should receive a sentence comparable to

Kolar, with Waters’ perjury at her initial trial balancing Kolar’s participation in a third

arson, and the two receiving approximately equal benefits based upon the matters

discussed in the Government’s Filing Concerning Defendant’s Sentencing. Given the

Government’s need for Waters’ cooperation against Solondz, however, the Government

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 14

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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concluded that it had no choice but to agree to a joint recommendation of 48 months’

imprisonment.

Accordingly, the Government asks that the Court impose a 48-month sentence

upon Waters. The Government believes such a sentence can adequately be said to

balance the various factors set forth in 18 U.S.C. § 3553(a), and that any lower sentence

would fail to do so. A 48-month sentence will require Waters, who currently has served

the equivalent of approximately three-years-and-one-month in prison, including good

time, to return to prison for a period of some months. Based, in significant part, upon that

fact, it will serve the goals of deterring others from similar crimes, and will promote

respect for the law, reflecting the tremendous harm that the community has suffered as a

result of Waters’ crime.

V. RECOMMENDATION REGARDING PLACEMENT

Waters has indicated through counsel that she intends to ask the Court to

recommend that she be placed in a halfway house to complete her sentence. Such a

recommendation would be based upon 18 U.S.C. § 3624(c)(1), which was amended in

2008 to provide that the Bureau of Prisons (BOP) “shall, to the extent practicable, ensure

that a prisoner serving a term of imprisonment spends a portion of the final months of that

term (not to exceed 12 months), under conditions that will afford that prisoner a

reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the

community. Such conditions may include a community correctional facility.” 18 U.S.C.

§ 3624(c)(1). Waters suggests that the Court should rely upon this provision to

recommend that Waters spend the entire approximately-11-months left of her anticipated

48-month sentence in a halfway house.

This Court should not do this for two reasons. First, BOP’s implementing

regulations provide that halfway house placements should generally be limited to six

months or less. On April 14, 2008, BOP issued a memorandum that provides that

“‘[w]hile the Act makes inmates eligible for a maximum of 12 months pre-release RRC

[i.e, residential reentry center] placements, Bureau experience reflects inmates’ prerelease RRC needs can usually be accommodated by a placement of six months or less.’”

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 15

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Sacora v. Beaman, 628 F.2d 1059, 1063 (9th Cir. 2010) (quoting the BOP memorandum).

On November 14, 2008, BOP issued a second memorandum that provides that “a RRC

placement beyond six months should only occur when there are unusual or extraordinary

circumstances justifying such placement, and the Regional Director concurs.” Id.

(quoting the BOP memorandum). The Ninth Circuit has upheld these memoranda and

procedures as reasonable constructions of 18 U.S.C. § 3624(c). Id. at 1065-70.

Although the ultimate decision of whether Waters should be permitted spend the

final 11 months of her sentence in a halfway house ultimately is BOP’s decision, see 18

U.S.C. § 3621(b); United States v. Dragna, 746 F.2d 457 , 458 (9th Cir. 1984), this Court

should not recommend such a placement, because Waters falls short of the standard that

BOP will apply. Waters’ request is based primarily upon the impact that a return to jail

will have on her daughter. Although this situation is certainly tragic, it is neither “unusual

[n]or extraordinary.” Unfortunately, all too many defendants, perhaps even the majority,

have children who are impacted by their parents’ decisions to engage in crime, and

subsequent incarceration. As a result, Waters’ parenthood is not a factor that BOP is

likely to weigh significantly in assessing Waters’ request to spend the last 11 months of

her sentence in a halfway house, and this Court should defer to BOP’s determination of

the appropriate amount of halfway house time to allow Waters at the completion of her

sentence for the serious crime of which she stands convicted.

Second, and even more important, making the recommendation that Waters seeks

will undermine the parties’ recommended sentence. As set forth in Part IV.A, Waters’

crime was a serious crime that resulted in significant danger to firefighters and others, in

more than $6 million in property damage, and in serious professional and emotional

impacts on the professors and students who worked in the Center for Urban Horticulture.

Moreover, it was a high-profile crime that impacted the public, separate and apart from

those with direct connections to the Center for Urban Horticulture. As set forth in Part

IV.B, Waters compounded her crime by presenting a defense based upon perjury, upon

unfounded allegations of government misconduct, and upon outrageous attacks on those

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 16

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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of her former co-conspirators decided to accept responsibility, and try and to atone for

their crimes as best they could.

Waters already has been the beneficiary of a plea bargain under which the parties

are making a sentencing recommendation lighter than might have been the case, based

upon the need for Waters’ cooperation in the prosecution of Solondz. The Court should

not contribute to making Waters’ punishment even lighter, by recommending that Waters

be granted the unusual benefit of being permitted to serve nearly the final year of her

sentence in a halfway house. For the Court to do so would essentially give Waters the

same sentence that Phillabaum received, something Waters clearly does not deserve.

Allowing Waters to avoid returning to prison also would undermine respect for the law,

and the deterrent value to others of the Court’s sentence. Put otherwise, Waters’ crimes

and her subsequent behavior were so egregious that they demand Waters being required

to return to prison to serve the normal portion of her 48-month sentence.

Finally, declining to make the recommendation that Waters seeks is consistent with

the Plea Agreement into which the parties understood that they were entering. Prior to

executing the Plea Agreement, the Government contacted BOP and was informed that

BOP generally does not allow inmates to spend more than the last six months of a

sentence in a halfway house. This understanding was incorporated into the Plea

Agreement. See Plea Agreement ¶ 10 (providing that the Government will recommend a

six-month halfway house placement, “pursuant to the provisions of the Bureau of Prisons’

program allowing inmates to serve up to the final six months of a sentence in a residential

reentry center”). Thus, the Government understood, and believes Waters also understood,

that the parties’ agreed 48-month recommendation would require her to serve some

additional period of imprisonment.

For all of these reasons, the Government believes the Court should recommend

that Waters be permitted to serve the last six months of her sentence in a halfway house,

consistent with BOP’s general policy. The Court should, however, decline Waters’

invitation to recommend that Waters spend the entire remaining portion of her sentence in

a halfway house, which would be contrary to BOP’s general policy, the parties’ Plea

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 17

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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Agreement, and, most important, considerations of the factors listed in 18 U.S.C.

§ 3553(a).

VI. CONCLUSION

For the foregoing reasons, the Court should sentence Waters to 48 months’

imprisonment, to be followed by three years’ supervised release, should waive a fine

based upon Waters’ inability to pay, but should order Waters to pay $6,092,649.85 in

restitution and a $400.00 penalty assessment. The Court should recommend that Waters

be incarcerated at FCI-Dublin, and that she be permitted to spend the final six months

(but no more) of her sentence at a halfway house.

DATED this 18th day of June, 2012.

Respectfully submitted,

JENNY A. DURKAN

United States Attorney

s/ Andrew C. Friedman

ANDREW C. FRIEDMAN

Assistant United States Attorney

s/ Thomas M. Woods

THOMAS M. WOODS

Assistant United States Attorney

700 Stewart Street, Suite 5220

Seattle, WA 98101

Telephone: (206) 553-7970

Fax: (206) 553-0755

E-mail: Andrew.Friedman@usdoj.gov

Thomas.Woods2@usdoj.gov

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 18

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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CERTIFICATE OF SERVICE

I hereby certify that on June 18, 2012, I electronically filed the foregoing with the

Clerk of Court using the CM/ECF system, which will send notification of such filing to

all counsel of record.

s/ Andrew C. Friedman 

ANDREW C. FRIEDMAN

Assistant United States Attorney

United States Attorney’s Office

700 Stewart, Suite 5220

Seattle, Washington 98101-1271

Telephone: 206-553-2277

Fax: 206-553-0755

E-mail: Andrew.Friedman@usdoj.gov

GOVERNMENT’S SENTENCING MEMORANDUM/WATERS (CR05-5828RBL) - 19

UNITED STATES ATTORNEY

700 STEWART STREET, SUITE 5220

SEATTLE, WASHINGTON 98101

(206) 553-7970

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