In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-3300 & 06-3457

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Cross-Appellant,

v.

STEVEN J. PARR,

Defendant-Appellant,

Cross-Appellee.

Appeals from the United States District Court

for the Eastern District of Wisconsin.

No. 04 CR 235—William C. Griesbach, Judge.

ARGUED SEPTEMBER 7, 2007—DECIDED SEPTEMBER 18, 2008

Before BAUER, POSNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Steven Parr was convicted of

threatening to use a weapon of mass destruction against

a federal government building and was sentenced to

10 years in prison. See 18 U.S.C. § 2332a(a)(3) & (a). On

appeal, Parr argues that he was convicted for conduct

protected by the First Amendment and that the district
2 Nos. 06-3300 & 06-3457

court abused its discretion in allowing the jury to hear

evidence of his extensive background relating to bombmaking and his fascination with domestic terrorism.

On those issues, we affirm. The First Amendment

allows restrictions on speech containing threats, and the

jury was entitled to find that Parr’s statements about

bombing the federal building in Milwaukee qualified as

“true threats.” As for the evidence regarding Parr’s background, it was highly relevant to the jury’s “true threat”

determination. One item of evidence, however—The

Anarchist Cookbook—should not have gone to the jury in its

entirety. This manual of the 1970s antiwar subculture

contains recipes for making homemade explosives and

weaponry. It was found in Parr’s possession and parts of

it were relevant and admissible, but it was a mistake to

submit the entire book to the jury during deliberations.

The error, however, was harmless.

Parr also raises a number of other challenges—both to

his conviction and his sentence—but only one has merit.

In calculating Parr’s advisory sentencing range under

the Sentencing Guidelines, the district court concluded

that Parr’s crime “involved” a “federal crime of terrorism”

and therefore applied a 12-level enhancement under

U.S.S.G. § 3A1.4. We conclude that the threat itself did not

“involve” a crime of terrorism as that term is understood

under the guideline, but Parr’s crime might still qualify

for the enhancement if the district court finds that a

purpose of the threat was to “promote” a crime of terrorism. We therefore remand for resentencing.

In light of the remand, we need not decide the issue

raised in the government’s cross-appeal: whether the 10-
Nos. 06-3300 & 06-3457 3

year sentence, well below the guidelines range of 360

months to life, is unreasonable. No doubt the sentence

was lenient relative to the range, but we withhold judgment on whether this degree of leniency was adequately justified. The range, and the sentence imposed,

may be different on remand.

I. Background

In the summer of 2004, the FBI received a letter warning

that “somebody is making plans to blow up the federal

building” in Milwaukee. The letter writer, John Schultz,

was an inmate in Wisconsin’s prison system, and the

“somebody” was his cellmate, Steven Parr. Schultz told

the FBI that Parr had repeatedly threatened to blow up

the Reuss Federal Plaza in Milwaukee and that these

comments should be taken seriously because Parr knew a

lot about bombmaking chemistry, was a follower of the

domestic terrorist Timothy McVeigh, and would complete

his prison term (for marijuana distribution) in less than

a month. After briefly investigating, the FBI learned that

Parr had previously been found in possession of

bombmaking instructions and that one of his prison

notebooks contained an antigovernment statement. Agents

convinced Schultz to wear a wire to record Parr’s statements.

The night before Parr was to be released Schultz recorded a lengthy conversation between the two that would

become the cornerstone of this prosecution. At first, the

conversation centered on bombmaking techniques. Parr

explained to Schultz how to build various types of bombs,
4 Nos. 06-3300 & 06-3457

discussed where to purchase particular chemicals useful

for creating explosives, and shared his past experiences

with manufacturing and detonating homemade explosives.

The details were grisly. To take just one example, Parr

described a bomb he had designed to be hidden in a

Noxzema face-cream container and said he planned to

use this device against an ex-girlfriend with the aim of

disfiguring her. Parr said he had completed construction

of this bomb but chickened out and never used it. At

another point in the conversation, Parr confessed to

burning down a different ex-girlfriend’s house using

napalm, a crime for which he had never been charged and

for which the statute of limitations had expired.

It was against this background of disclosures that

Parr described his plan to blow up the Reuss Federal Plaza

in Milwaukee. He said he planned to construct a bomb

inside a delivery truck, park the truck outside the

federal building, and walk inside as if to make a delivery.

He explained that he would briefly enter the building

but then would slip outside immediately and run as far

as he could before the bomb exploded.

The plan was detailed. Parr mentioned the number of

detonators and drums of explosives he would use, where

he would park, and how he would deflect suspicion.

Some of the plan was described conditionally—he said,

for example, that he would have to find a schedule of

conventions or employee meetings at the Reuss Plaza so he

could explode the bomb at a time when a lot of federal

employees were in the building (ATF agents were of

particular interest). But much of the plan was described
Nos. 06-3300 & 06-3457 5

in definite terms: “Oh, it will be extremely loud. Echoing

off the buildings and . . . [the federal building], it’s all

glass. The damage that will be done will just be complete.”

Parr explained that he wanted to be “the next McVeigh”

and that he had chosen the federal building in Milwaukee

as his target because it was in “down home America” and

would “make a wonderful statement.” He said that

antigovernment “militia groups” would be inspired by

his bombing, just as they were when McVeigh blew up

the federal building in Oklahoma City. He said: “I may

not be as radical as [McVeigh], but I surely agree with him

and it might unite more people. It might generate some

people to stand up and say, you know what? Enough is

enough.” Parr promised to give Schultz an interview

afterward so he could sell his story as Parr’s former

cellmate to the National Enquirer and other publications.

Parr did not specify an exact time frame for his plan,

noting that he would be on probation for eight years after

his release and would use that time to “refine [his] techniques” because he would get only one chance. But he

vowed to pull off his plan within ten years: “Well, I’m 40

now. Maybe 50. Maybe it’ll be my 50th birthday present.”

Despite some of his more conditional statements and the

uncertainty about the timing, Parr emphasized that he

“absolutely” would execute his plan:

Schultz: So all this shit that you been tellin’ me is not

just all bullshit. Someday, someone’s gonna

get it I hope right?

Parr: Absolutely.
6 Nos. 06-3300 & 06-3457

Schultz: No doubt about it.

Parr: No doubt.

Schultz: Someone’s gonna get it.

Parr: Someone’s gonna get it.

The conversation concluded with the two men discussing Schultz’s status as an accomplice by virtue of

the knowledge he now had of the “inside details” of Parr’s

plans. Parr also mentioned that he had committed “several

federal felonies” just by telling Schultz how to make a

bomb, adding that “in today’s terrorist environment,” it’s

“a very serious crime” to “explain to someone how to

make a bomb.”

The day after this conversation, Parr was released to a

halfway house but was quickly rearrested and indicted

for threatening to use a weapon of mass destruction

against a federal government building in violation of 18

U.S.C. § 2332a(a)(3). After his arrest Parr voluntarily

spoke to FBI agents and denied having made the statements. Given the existence of the recording, that wasn’t

a tenable position. At trial prosecutors played the recording of Parr’s remarks and called Schultz to testify about

his conversations with Parr. Parr testified and admitted

making the statements (he could hardly do otherwise)

but claimed he had been joking—just mouthing off to

his cellmate.

Prosecutors painted a different picture. Schultz testified

that he had taken Parr’s comments seriously. A number

of witnesses—including three of Parr’s ex-girlfriends and

two former neighbors—testified that Parr had long hated
Nos. 06-3300 & 06-3457 7

the government, experimented with explosives, and

admired domestic terrorists. One ex-girlfriend testified

that Parr owned chemistry equipment and liked to experiment with chemicals and explosives. She said he

liked to read books on bombmaking and ordered kegs

containing black powder. More troubling, she testified

that he frequently spoke of Timothy McVeigh and that he

was “fascinated” with and upset by McVeigh’s execution.

She also mentioned that he had spoken of blowing up

buildings—remarks she believed were serious—and that

he went by the nickname “Uni,” apparently a reference

to Ted Kaczynski (the “Unabomber”), another domestic

terrorist.

Another former girlfriend testified that she had seen Parr

construct about a dozen pipe bombs and use one to blow

up a log. She also described Parr’s obsession with chemicals and bombmaking books, and she mentioned seeing

a small can of black powder, which Parr kept in the

garage and was afraid he would be caught with. The

third ex-girlfriend and the two former neighbors gave

similar accounts.

Prosecutors also introduced a number of books and

notebooks found in Parr’s possession at the time of his

earlier arrest for drug distribution, including The Anarchist

Cookbook, a handbook from the 1970s that contains instructions for a litany of illicit activities ranging from the

manufacture of illegal drugs and explosives to the

creation and use of various other weapons and telecommunication equipment. Finally, prosecutors presented

expert testimony that Parr would have been capable of

carrying out his threat.
8 Nos. 06-3300 & 06-3457

The jury convicted Parr, and at sentencing the district

judge applied two enhancements in calculating Parr’s

advisory sentence under the sentencing guidelines: a 12-

level enhancement because Parr’s offense “involved a

crime of terrorism” and a 2-level enhancement for obstruction of justice based on a finding that Parr committed perjury at trial. See U.S.S.G. §§ 3A1.4, 3C1.1. The

resulting advisory guidelines range was 360 months to

life in prison. The judge considered a sentence within this

range to be “grossly disproportionate” to the seriousness

of Parr’s offense, emphasizing that it was “unclear”

whether Parr had actually intended to carry out his

threat and noting that his threat was not imminent. The

judge sentenced Parr to a below-guidelines term of 120

months in prison. Parr appealed both his conviction and

sentence, and the government appealed the sentence.

II. Discussion

A. First Amendment Challenge and Related Claims of

Evidentiary Error

Parr first argues that his conviction was unconstitutional because the statements for which he was convicted

were protected by the First Amendment. But the First

Amendment does not preclude restrictions on certain

categories of speech having little or no social value, and

threats are one such category. Virginia v. Black, 538 U.S. 343,

358-59 (2003). A statement qualifies as a “true threat,”

unprotected by the First Amendment, if it is “a serious

expression of an intent to commit an act of unlawful

violence to a particular individual or group of individu-
Nos. 06-3300 & 06-3457 9

als.” Id. at 359; see also R.A.V. v. City of St. Paul, Minn., 505

U.S. 377, 388 (1992); Watts v. United States, 394 U.S. 705, 707

(1969) (distinguishing a threat from constitutionally

protected speech such as political hyperbole).

We think it readily apparent that Parr’s statements

were threats, but ultimately that question was for the jury.

United States v. Saunders, 166 F.3d 907, 912 (7th Cir. 1999);

United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.

1990). The jury was properly instructed that Parr’s statements qualified as a true threat if a reasonable person

would understand that the statements, in their context

and under all the circumstances, would be interpreted as

“a serious expression of an intention to use a weapon of

mass destruction to damage the Reuss Federal Plaza.” The

jury was also instructed that it must be satisfied that

Parr “intended his statement[s] to be understood in that

manner.” The instruction continued as follows:

A “true threat” is a serious statement expressing an

intention to do an act which under the circumstances

would cause apprehension in a reasonable person, as

distinguished from idle or careless talk, exaggeration,

or something said in a careless manner. To constitute

a true threat, however, it is not necessary that [Parr]

actually intended to use a weapon of mass destruction

to damage the building or that he had the capacity to

do so. Nor is it required that he communicated the

threat to anyone connected with the Reuss Federal

Plaza.

To the extent Parr is making an argument about the

scope of the true threat doctrine and the proper defini-
10 Nos. 06-3300 & 06-3457

tion of true threats, our review would be de novo. But at

oral argument Parr explicitly disclaimed any challenge

to the jury instructions. In convicting Parr, the jury implicitly found that Parr’s statements were true threats

based on the foregoing definition, and we can overturn

the verdict only if Parr shows that there was no evidence

to support it. Saunders, 166 F.2d at 912. The supporting

evidence was abundant. Parr stated repeatedly and

consistently that he was going to bomb the federal

building in Milwaukee, and nothing in the context required the jury to find that he was joking or using hyperbole. Cf. Watts, 394 U.S. at 708 (comments at political rally

were political hyperbole as opposed to true threats,

especially where crowd immediately laughed at the

remarks and the speaker conditioned his threat on an

event that he had vowed would never happen); see also

United States v. Guevara, 408 F.3d 252, 258 (5th Cir. 2005)

(distinguishing true threat from “idle or careless talk,

exaggeration, or something said in a joking manner”).

It is true that Parr gave no precise time for carrying out

his plan and did not relay his threats directly to his intended victim. But neither point is dispositive. A threat

doesn’t need to be communicated directly to its victim

or specify when it will be carried out. Cf. Porter v. Ascension

Parish Sch. Bd., 393 F.3d 608, 616-17 (5th Cir. 2004)

(threat must be “communicated to either the object of the

threat or a third person” (emphasis omitted) (emphasis

added)); United States v. Howell, 719 F.2d 1258, 1260 (5th
Nos. 06-3300 & 06-3457 11

See also United States v. England, 507 F.3d 581, 589 (7th Cir. 1

2007) (under witness tampering statute, threat need not be

communicated to victim); United States v. Stewart, 420 F.3d

1007, 1016 (9th Cir. 2005) (threat need not be communicated

to victim); Doe v. Pulaski County Spec. Sch. Dist., 306 F.3d 616,

624 (8th Cir. 2002) (there must be communication to “the

objects of the purported threat or to a third party”); United

States v. Martin, 163 F.3d 1212, 1214-16 (10th Cir. 1998)

(defendant told friend he was going to kill police detective);

Schneider, 910 F.2d at 1570-71 (letter threatening trial judge

was mailed to the state supreme court); United States v.

Raymer, 876 F.2d 383, 391 (5th Cir. 1989) (victim need not

actually receive threat).

Cir. 1983) (time frame not specified). Parr claimed his 1

discussion of bombing the Milwaukee federal building

was just prison “talk”—common among inmates who

vent their frustrations against the government—but

Schultz testified that Parr’s statements were very different from the ordinary antigovernment hyperbole often

heard in prisons. The jury was entitled to agree.

Parr’s constitutional argument spills over into his various

claims of evidentiary error, which can be consolidated

under the umbrella of one basic question: what sort of

evidence was relevant and admissible to prove that his

statements qualified as a true threat? At trial the government called several of Parr’s former girlfriends and neighbors to testify about his pervasive interest in explosives

and domestic terrorism, including his long history of

building pipe bombs, storing explosives, and experimenting with chemicals; his admiration for domestic terrorists
12 Nos. 06-3300 & 06-3457

Ted Kaczynski and Timothy McVeigh; and his use of

the nickname “Uni,” a reference to the Unabomber.

Prosecutors also called an expert on explosives who

testified that with practice, Parr would be capable of

carrying out his plans. From this evidence the government asked the jury to infer that Parr was serious when he

said he planned to bomb the federal building—that he

actually intended to carry out his threats—and that he

had the knowledge and ability to do so. Parr argues that

his intent and ability to carry out his threats were irrelevant and the district judge abused his discretion in admitting this evidence.

It is well-established that the government is not required

to prove that the defendant in a threat case intended or

was able to carry out his threats. Black, 538 U.S. at 359-60;

United States v. Fuller, 387 F.3d 643, 647-48 (7th Cir. 2004);

United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986).

Antithreat statutes thus differ from attempt or conspiracy

statutes, which require that the defendant intend or

agree to commit the predicate crime. But it does not

follow that Parr’s intent was irrelevant.

To assess whether Parr’s statements were true threats,

the jury needed to make inferences from the background

and context about his demeanor at the time he made

the statements—to decide, under the circumstances,

whether he conveyed the impression that he was serious

or joking. A person who says he is going to bomb a building is more likely to give the impression he is serious if he

actually is serious—if he actually plans to carry out his

threat and is able to do so. See Guevara, 408 F.3d at 258 (test

for a threat is whether the statements “would cause
Nos. 06-3300 & 06-3457 13

apprehension in a reasonable person”). So if the government could show that Parr was serious about his plan

to bomb the Milwaukee federal building, that evidence

was highly relevant.

For the same reason, the background evidence was

also relevant to whether Parr intended that his statements

be understood as a threat—a question with added significance here because the jury was told it could convict

only if Parr intended his comments to be understood that

way. Traditionally, the law in this and most other

circuits has been the opposite—an objective “reasonable

person” test has applied, an inquiry that asks whether a

reasonable speaker would understand that his statement would be interpreted as a threat (the “reasonable

speaker” test) or alternatively, whether a reasonable

listener would interpret the statement as a threat (the

objective “reasonable listener” or “reasonable recipient”

test). See, e.g., United States v. Stewart, 411 F.3d 825, 827-28

(7th Cir. 2005); Saunders, 166 F.3d at 913-14 (collecting true

threat cases and discussing the distinction between the

“reasonable speaker” and “reasonable listener” approaches); Schneider, 910 F.2d at 1570-71. But the

Supreme Court’s decision in Virginia v. Black, supra, has

raised some questions about whether that is still true.

In Black, the Supreme Court considered the constitutionality of a Virginia statute making it a criminal offense

to burn a cross with intent to intimidate. 538 U.S. at 347-48.

The Court invalidated the statute on First Amendment

grounds, id. at 367, but the justices were divided on the

rationale. The case produced five opinions: a plurality

opinion by Justice O’Connor (joined by Chief Justice
14 Nos. 06-3300 & 06-3457

Rehnquist, Justice Stevens—who also wrote a brief concurrence—and Justice Breyer); an opinion by Justice

Scalia concurring in part and dissenting in part (joined in

part by Justice Thomas); an opinion by Justice Souter

concurring in part and dissenting in part (joined by Justices

Kennedy and Ginsburg); and a dissent by Justice Thomas.

Most of the debate among the justices concerned the

question of whether the statute impermissibly discriminated on the basis of content or viewpoint and the

validity of a particular provision in the statute making

the burning of a cross prima facie evidence of the defendant’s intent to intimidate. For our purposes here, however, it is enough to note that the plurality offered a new

definition of true threats, part of which we have quoted

above. The entire passage is as follows:

“True threats” encompass those statements where the

speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals. . . . The speaker

need not actually intend to carry out the threat.

Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the

disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened

violence will occur.” Intimidation in the constitutionally proscribable sense of the word is a type of true

threat, where a speaker directs a threat to a person or

group of persons with the intent of placing the victim

in fear of bodily harm or death.

Id. at 359-60 (emphasis added) (citations omitted).
Nos. 06-3300 & 06-3457 15

Not all courts have agreed that Black changed the test for 2

true threats. See, e.g., Porter, 393 F.3d at 616 (interpreting

Black to require only that the speaker knowingly made the

statement, not subjectively intended it as a threat). The Ninth

Circuit is internally divided on the issue. In Cassel, 408 F.3d

at 633, the court undertook a close analysis of the plurality

and separate opinions in Black and held that speech

qualifies as a true threat “only upon proof that the speaker

subjectively intended the speech as a threat.” The holding in

Cassel, however, was not followed in United States v. Romo,

413 F.3d 1044, 1051 (9th Cir. 2005); Romo, in turn, was questioned in United States v. Stewart, 420 F.3d 1007, 1017-18 (9th

Cir. 2005). Stewart did not attempt to reconcile the intracircuit conflict because the statute at issue in that case

contained an intent element and the evidence established a

true threat under either a subjective or objective definition.

Id. The latest Ninth Circuit pronouncement on threat doctrine

(continued...)

Based on the language we have highlighted, some

circuits have held that a statement qualifies as a true threat

only if the speaker subjectively intended it as a threat. See

United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir.

2005); United States v. Cassel, 408 F.3d 624, 631 (9th Cir.

2005); see also United States v. Cope, No. 06-5431, 2008 WL

2630366 (6th Cir. July 3, 2008) (unpublished) (discussing

Black in the context of a threat statute and jury instructions that contained an intent element but deferring the

question of whether the Supreme Court altered the definition of true threats in light of the procedural posture of the

case). The court in Cassel noted that the ultimate holding 2
16 Nos. 06-3300 & 06-3457

(...continued) 2

indicates that the conflict remains unresolved. See Fogel v.

Collins, 531 F.3d 824, 831 (9th Cir. 2008). For an excellent

summary of post-Black developments on this issue, see Paul T.

Crane, “True Threats” and the Issue of Intent, 92 VA. L.

REV. 1225, 1261-68 (2006).

in Black—that the Virginia statute was unconstitutional

because its prima facie intent provision effectively eliminated the requirement of proving intent—also suggested

that subjective intent to threaten was required. Cassel,

408 F.3d at 631. This circuit has not yet addressed the

issue. See Fuller, 387 F.3d at 646 (a post-Black true threats

case applying, without reference to Black, the traditional

objective “reasonable person” test).

It is possible that the Court was not attempting a comprehensive redefinition of true threats in Black; the plurality’s discussion of threat doctrine was very brief. It is

more likely, however, that an entirely objective definition

is no longer tenable. See Cassel, 408 F.3d at 631-33. But

whether the Court meant to retire the objective “reasonable

person” approach or to add a subjective intent requirement to the prevailing test for true threats is unclear. If

the latter, then a standard that combines objective and

subjective inquiries might satisfy the constitutional concern: the factfinder might be asked first to determine

whether a reasonable person, under the circumstances,

would interpret the speaker’s statement as a threat, and

second, whether the speaker intended it as a threat. In
Nos. 06-3300 & 06-3457 17

other words, the statement at issue must objectively be a

threat and subjectively be intended as such.

We need not resolve the issue here. Parr asked the

district court to instruct the jury on his intent, and the

judge obliged, telling jurors they could convict only if

Parr “intended his statement to be understood” as a threat.

As we have noted, Parr did not challenge this instruction

on appeal (it is doubtful he could have since he requested it), and at oral argument he disavowed any claim

of instructional error. Parr put his intent at issue, and the

jury was instructed to evaluate Parr’s statements for

their objective meaning and Parr’s subjective intent.

Accordingly, the background evidence of Parr’s antigovernment convictions and his history of bombmaking

was highly relevant.

Putting the intent issue to one side, there is a separate

point here about the relevance of a speaker’s attitudes

and background in deciding whether a statement is a

threat. An important purpose of antithreat statutes is to

empower law enforcement to stop those who threaten

violence before they attempt to carry out their threats—as

we put it in a slightly different context, to allow police

to arrest a would-be assassin before “the President finds

himself staring down the barrel of a loaded gun.” Hoffman,

806 F.2d at 707; see also Fuller, 387 F.3d at 647. To perform

that function, law enforcement—the FBI, police, prosecutors—must evaluate the speaker’s statements, so an

objective contextual interpretation matters. Of course,

law enforcement officers have access to a wide variety

of information about a suspect—among other things, the
18 Nos. 06-3300 & 06-3457

suspect’s history of violence, experience with weaponry,

background attitudes and activities—and all of this

information will reasonably inform their interpretation

of his statements.

In short, when a person says he plans to blow up a

building, he will naturally be taken more seriously if he

has a history of building bombs and supporting terrorism.

The upshot is that in a threat case, information about the

defendant’s background is at least potentially relevant to

gauging whether his statements qualify as a true threat.

That isn’t to say that all background information is admissible; the probative value must still be weighed

against the potential for prejudice, see FED. R. EVID. 403,

but related background evidence is relevant and potentially admissible.

Parr correctly notes that a number of our cases have

assessed whether a statement is a threat by considering

how the speaker should reasonably have expected it to

be interpreted “ ‘by those to whom the maker communicates a statement.’ ” See, e.g., United States v. Khorrami, 895

F.2d 1186, 1192-93 (7th Cir. 1990) (quoting Hoffman, 806

F.2d at 707). Applied strictly, this language might

suggest that a speaker’s background is relevant only if

it was known to (and therefore had the potential to affect

the interpretation of) his intended audience—in this case,

Parr’s cellmate, who wasn’t aware of all of the specifics of

Parr’s history as described by his former girlfriends and

neighbors. But we have not applied this test consistently.

See Saunders, 166 F.3d at 913-14 (contrasting the “reasonable speaker” and “reasonable listener” cases); United
Nos. 06-3300 & 06-3457 19

Hoffman also considered this evidence as relevant to the 3

defendant’s “willfulness” in making the threat, a requirement

the court apparently understood to mean that the defendant

intended his statement to be understood as a threat. 806 F.2d at

706-07. The threat statute at issue in Hoffman, 18 U.S.C. § 871(a),

prohibits any person from “knowingly and wilfully” making

any threat of harm to the President; the opinion’s discussion

of the defendant’s intent, however, centered not on the statute

but on whether the First Amendment’s threat doctrine required

proof that the defendant intended to carry out the threat or

simply proof that the defendant intended his statement to be

(continued...)

States v. Aman, 31 F.3d 550, 553 (7th Cir. 1994) (quoting

Schneider) (applying a reasonable listener test); Schneider,

910 F.2d at 1570. Although our circuit “treats as relevant

evidence both the victim’s response to a statement and the

victim’s belief that it was a threat,” Saunders, 166 F.3d at

913, we have never limited the inquiry to either the

speaker’s perspective or the targeted victim’s perspective.

For example, in Hoffman, the defendant mailed a threatening letter to the President, and we thought it relevant

that the Secret Service and the staff of the White House

mailroom took the letter seriously, even though they

weren’t the targets of the threat. 806 F.3d at 712. Other

information about the defendant’s background was

relevant to the analysis—for example, that he was a

member of a group whose leader had been refused a

pardon by the President—even though there was no

evidence to suggest that this background information

was known to either the White House staff or the President. Id. at 708-09. Other cases have also considered 3
20 Nos. 06-3300 & 06-3457

(...continued)

interpreted as a threat.

contextual information that wouldn’t strictly be relevant

if the inquiry were as limited as Parr suggests—for example, the reaction of the target of a threat even when the

speaker did not communicate the threat to the target,

Schneider, 910 F.2d at 1570, and even when the speaker

tried to prevent the target from learning of it, United

States v. Martin, 163 F.3d 1212, 1214-16 (10th Cir. 1998).

The lesson of these cases is that the true threat determination is informed by but not limited to what the recipient or target of the alleged threat knew about the defendant. Contextual information—especially aspects of a

defendant’s background that have a bearing on whether

his statements might reasonably be interpreted as a

threat—is relevant and potentially admissible regardless

of whether the recipient or targeted victim had full

access to that information.

This brings us to the question of whether the evidence

at issue here should have been admitted, which depends

not just on its relevance but also on its potential to cause

unfair prejudice. The district judge concluded that the

relevance of the background evidence was not substantially outweighed by any potential for unfair prejudice,

and that was not an abuse of his discretion. The jury knew

from Parr’s recorded statements that he claimed to have

vast knowledge of and experience with explosives. Admitting evidence that his claims were actually true was

hardly unfairly prejudicial to him. The challenged evidence was properly admitted.
Nos. 06-3300 & 06-3457 21

There is, however, one evidentiary matter that raises a

separate concern. As part of its case, the government

sought to introduce The Anarchist Cookbook, a book that

Parr referenced in his prison-cell conversations and that

had been found in his possession prior to his imprisonment. The judge initially held that only relevant portions

of the book would be admitted into evidence, subject to

a “specific showing of relevance” for each section admitted. But he later permitted the whole book to go to the

jury during deliberations.

That was an abuse of discretion. Although portions of the

book were indeed relevant because Parr had discussed

them in his conversation with Schultz and because they

refuted his defense that he was merely engaged in hyperbole, much of the book was irrelevant. The Anarchist

Cookbook is a hodgepodge of instructions for committing

an array of illegal activities, many of which have nothing

to do with explosives and could only risk inflaming the

jury. So while the sections referring to homemade explosives were admissible, other sections—some of which

describe the manufacture and use of drugs, guns, and

other weaponry, for example—should not have been

presented to the jury. United States v. Rogers, 270 F.3d 1076,

1081 (7th Cir. 2001) (“the prosecutor should have been

limited to using those portions of the book pertinent to

the charge”). The proper approach would have been to

photocopy and admit the relevant pages, rather than

send the entire book to the jury room.

But we conclude the error was harmless. See United States

v. Sutton, 337 F.3d 792, 797 (7th Cir. 2003). The book was a
22 Nos. 06-3300 & 06-3457

very small portion of the government’s case, and the

evidence against Parr was overwhelming, see United States

v. Holt, 170 F.3d 698, 702 (7th Cir. 1999) (improper admission of The Anarchist Cookbook was not reversible error

when other evidence against defendant was “overwhelming”). The irrelevant sections of the book were never

discussed during the trial, and the jury was specifically

instructed that Parr was not on trial for his political views.

We doubt that the jury focused undue attention on

the irrelevant sections of the book.

B. Sentencing Issues

1. The Guidelines Enhancements

a. Obstruction-of-Justice Enhancement

Parr next challenges his sentence, arguing first that the

district court improperly applied the obstruction-ofjustice enhancement. See U.S.S.G. § 3C1.1. The judge

found that Parr lied on the witness stand when he

testified about his initial interview with the FBI. Contrary

to Parr’s argument, the district judge made the necessary findings to support his conclusion that Parr had

perjured himself. The judge specifically found that Parr

lied, that his lie was material, and that the lie was intentional. That was all that was required. See United States v.

Dunnigan, 507 U.S. 87, 94-96 (1993); United States v. Frietag,

230 F.3d 1019, 1026 (7th Cir. 2000) (judge need only find

that testimony was “intentionally given, false, and material”).

Parr also contends that the court misinterpreted his

testimony, but we see no clear error in the judge’s inter-
Nos. 06-3300 & 06-3457 23

pretation. See United States v. Jackson, 300 F.3d 740, 749 (7th

Cir. 2002). Parr testified that at his initial FBI interview,

he admitted making the statements for which he was

charged and said he told the agents that his comments

weren’t serious. He testified that by the end of his interview, he had decided to “lawyer up” and began denying

everything. But he insisted he had initially been truthful

with the FBI:

[PARR]: At the beginning of the conversation they

said did you intend to do this? And I said of course

not.

[PROSECUTOR]: And then they asked, did you say

that you would do it? And you said of course not,

right?

[PARR]: No. I admitted that we’d had the conversation

in the beginning, without saying specifically did you

say this word? . . . It wasn’t that specific. In the beginning was did you have a conversation? Yes. Did you

talk about blowing up the building? Yes. Were you

gonna do it? No, of course not.

Parr later summed up his initial conversation with the FBI

as follows: “I said it wasn’t real; I didn’t mean it. It wasn’t

real.”

But one of the FBI agents who interviewed Parr told a

completely different story. According to the agent, Parr

initially denied having made the statements:

[AGENT HAMMEN]: Again, as soon as we sat down

with [Parr], we made it clear that we were there to get

to the truth. To the bottom of this. What was going on.
24 Nos. 06-3300 & 06-3457

And again he denied—he put it on to his cell mate,

and then denied it.

[PROSECUTOR]: At any time did he tell you that he

had made statements about making a bomb, but they

were just make believe? Or responding to his cell

mate? Or any kind of what you heard today?

[AGENT HAMMEN]: No, he never brought that up.

[PROSECUTOR]: Okay. So the explanations that Mr.

Parr just gave about his interview are not consistent

with your recollections?

[AGENT HAMMEN]: That’s correct.

It is hard to imagine how the agent’s testimony and

Parr’s could be viewed as anything but contradictory. It

was not clear error for the judge to interpret Parr’s testimony as materially different from the FBI agent’s, and to

conclude that Parr had perjured himself. The obstructionof-justice enhancement was properly applied.

b. Crime-of-Terrorism Enhancement

Parr next challenges the district court’s application of

U.S.S.G. § 3A1.4, which applies a 12-level enhancement

for an “offense . . . that involved, or was intended to

promote, a federal crime of terrorism.” The Application

Notes provide that a “ ‘federal crime of terrorism’ has the

meaning given that term in 18 U.S.C. § 2332b(g)(5).”

U.S.S.G. § 3A1.4 cmt. n.1. That statute, in turn, defines

a “[f]ederal crime of terrorism” as an offense that is

(1) “calculated to influence or affect the conduct of gov-
Nos. 06-3300 & 06-3457 25

ernment by intimidation or coercion, or to retaliate

against government conduct”; and (2) listed in 18 U.S.C.

§ 2332b(g)(5)(B)(i). 18 U.S.C. § 2332b(g)(5)(A) & (B). The

definition is stated in the conjunctive, so both requirements must be met. Parr’s crime of conviction is specifically listed in 18 U.S.C. § 2332b(g)(5)(B)(i); the only question is whether it met the first requirement.

The district judge found that Parr’s threat was “not

calculated to influence or affect the conduct of government” because it was uttered to his cellmate. Accordingly,

he concluded that Parr’s crime of conviction was not

itself a “federal crime of terrorism.” But the judge

applied the guideline anyway because the act Parr threatened to commit—the bombing—was a crime of terrorism,

and that meant his offense “involved” a crime of terrorism

within the meaning of § 3A1.4.

The term “involve” as used in the guidelines is not quite

so broad; it means “to include.” United States v. Arnaout,

431 F.3d 994, 1001 (7th Cir. 2005) (citing United States v.

Graham, 275 F.3d 490, 516 (6th Cir. 2001)). Thus, we have

held that an offense “involves” a federal crime of

terrorism only if the crime of conviction is itself a federal

crime of terrorism. Id. On this understanding, if Parr’s

crime—the threat—was not itself a federal crime of terrorism as defined in § 2332b(g)(5)(A) and (B) (and the

district court found that it was not), then the offense did

not “involve” a federal crime of terrorism.

Because of this error, we must vacate Parr’s sentence

and remand for resentencing. It is still possible, however,

that § 3A1.4 might properly be applied on remand.
26 Nos. 06-3300 & 06-3457

The enhancement contains an alternative application:

the guideline also applies if a purpose of Parr’s offense

was to “promote terrorism.” The district court did not

determine whether the “promote terrorism” variation of

§ 3A1.4 applies and should do so on remand. See Arnaout,

431 F.3d at 1002 (“[Section] 3A1.4 must be considered

when a defendant is convicted of a federal crime of terrorism . . . or when a defendant’s felony conviction or

relevant conduct has as one purpose the intent to

promote a federal crime of terrorism.”); see also United

States v. Mandhai, 375 F.3d 1243, 1248 (11th Cir. 2004) (the

“promote” language in § 3A1.4 “cast[s] a broader net” than

the “include” language, and “if [the defendant’s] purpose

is to promote a terrorism crime, the enhancement is

triggered”); United States v. Graham, 275 F.3d 490, 516 (6th

Cir. 2001) (“A defendant who intends to promote a federal

crime of terrorism has not necessarily completed, attempted, or conspired to commit the crime; instead

the phrase implies that the defendant has as one purpose

of his substantive count of conviction or his relevant

conduct the intent to promote a federal crime of terrorism.”).

2. The Government’s Cross-appeal

Because we are vacating and remanding for resentencing,

we do not reach the government’s cross-appeal, which

argued that the 10-year below-guidelines sentence was

unreasonable. Parr’s sentence is indeed surprising—a full

20 years below the low end of the guidelines range of 360

months to life. In at least one recent case, we have reversed
Nos. 06-3300 & 06-3457 27

a deviation of similar proportional magnitude. See United

States v. Omole, 523 F.3d 691, 698-99 (7th Cir. 2008). And

although such a large deviation might be reasonable in

some circumstances, it would require a rather strong

justification, Gall v. United States, 128 S. Ct. 586, 597 (2007),

which we aren’t sure is present here. Nevertheless, after

Gall, our review of a nonguideline sentence is extremely

deferential. See United States v. Carter, No. 07-2438, 2008 WL

3844058, at *3 (7th Cir. Aug. 19, 2008). In light of the

remand, however, we need not decide whether the

district court’s justification would survive review. We

will not speculate on whether the guidelines range or the

sentence will remain the same following resentencing;

both may be challenged in a second appeal.

C. Miscellaneous Issues

Parr raises a number of other issues, which merit only

brief mention. He argues, for example, that the judge

improperly influenced the jury by mistakenly referring to

him as “Mr. McVeigh” at one point during the trial. Parr’s

attorney did not object, move for a mistrial, or ask the

judge to recuse himself, so we review for plain error, see

FED. R. CRIM. P. 52(b), a standard that is not met here

because the judge’s comment had no potential to influence

the jury. Indeed, it was clear from the context that the

judge simply misspoke (this probably explains why Parr’s

attorney did not object), and in case there was any

doubt, the judge immediately apologized and corrected

himself.
28 Nos. 06-3300 & 06-3457

Parr also argues that his sentence was unconstitutional

under Cunningham v. California, 127 S. Ct. 856 (2007),

because it was based on facts not found beyond a reasonable doubt by a jury. This argument has been repeatedly

rejected. United States v. Savage, 505 F.3d 754, 764 (7th Cir.

2007) (rejecting argument that Cunningham “precludes

district judges from finding facts that may enhance sentences”); United States v. Roti, 484 F.3d 934, 937 (7th Cir.

2007) (“Cunningham . . . has no effect on post-Booker

federal practice.”).

For the foregoing reasons, we AFFIRM the judgment of

conviction, VACATE the sentence, and REMAND for resentencing.

9-18-08