harpham affidavit01

8/3/2019 Harpham affidavit01

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Michael C. OrmsbyUnited States AttorneyEastern District of WashingtonJoseph H. HarringtonThomas O. RiceAssistant United States Attorneys

Post Office Box 1494Spokane, WA 99210-1494Telephone: (509) 353-2767

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

KEVIN WILLIAM HARPHAM,

Defendant.

)))))))))

CR-11-042-JLQ

In Camera Request of theParties for the Court to Acceptthe Plea Agreement

Plaintiff, United States of America, by and through Michael C. Ormsby,

United States Attorney for the Eastern District of Washington, and Joseph H.

Harrington and Thomas O. Rice, Assistant United States Attorneys for the Eastern

District of Washington, and Defendant KEVIN WILLIAM HARPHAM, and the

Defendants counsel, Roger J. Peven, Kimberly A. Deater, and Kailey E. Moran,

submit the following request that the Court accept the Plea Agreement in this case.

BACKGROUND

On January 17, 2011, at approximately 9:30 a.m., an improvised explosive

device (IED) was discovered at the northeast corner of Main and Washington

Streets in Spokane, Washington, prior to, and along the planned route of, the

Martin Luther King Jr. Day Unity March. The IED, contained within a backpack,

In Camera Request of the Parties for the Court to Accept the Plea Agreement- 1P11101dd.JHA

Case 2:11-cr-00042-JLQ Document 213 Filed 11/01/11


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consisted of a steel pipe approximately 6 inches long with a 3 inch diameter, itself

containing a charge and shrapnel (ie: fishing weights coated with brodifacoum, an

anticoagulant), all enclosed within a wooden box and included a power or

triggering system.

The backpack was discovered by some day laborers hired by the City of

Spokane to pick up trash around the Spokane Convention Center. The Spokane

bomb squad immediately responded and rendered the device safe before any

detonation. The Federal Bureau of Investigation led an extensive investigation to

determine who was responsible for making and placing the device. By March 9,

2011, a Kevin William Harpham was identified, arrested and charged. A

Superseding Indictment was filed on April 21, 2011 charging Kevin William

Harpham with four crimes, Count 1, Attempted Use of a Weapon of Mass

Destruction in violation of 18 U.S.C. 2332a(a)(2); Count 2, Possession of an

Unregistered Destructive Device in violation of 26 U.S.C. 5861(d); Count 3,

Attempt to Cause Bodily Injury with an Explosive Device Because of Actual or

Perceived Race, Color, and National Origin of Any Person, in violation of 18

U.S.C. 249; and Count 4, Using a Firearm in Relation to a Crime of Violence, in

violation of 18 U.S.C. 924(c)(1)(B)(ii).On September 7, 2011, Kevin William Harpham, age 37, entered his guilty

plea to Counts 1 and 3 of the Superseding Indictment. Count 1, which charges

Attempted Use of a Weapon of Mass Destruction in violation of 18 U.S.C.

2332a(a)(2), carries a maximum penalty of any term of years or life term of

imprisonment; not more than a $250,000 fine; and any term of years or life term of

supervised release. Count 3, which charges Attempt to Cause Bodily Injury with

an Explosive Device Because of Actual or Perceived Race, Color, and NationalOrigin of Any Person in violation of 18 U.S.C. 249, carries a maximum penalty

of not more than a ten-year term of imprisonment; not more than a $250,000 fine;




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and not more than a three-year term of supervised release. The United States

agreed to move for the dismissal of Counts 2 and 4 at the sentencing hearing.

The parties are recommending to the Court that, pursuant to Fed. R. Crim.

11(c)(1)(C), the Court impose a term of imprisonment within a range of twenty-

seven (27) years to thirty-two (32) years, to be followed by a life term of

supervised release as the appropriate disposition of this case. The Defendant has

the option to withdraw from the Plea Agreement if the Court imposes a sentence

of greater than a thirty-two (32) year term of imprisonment. The United States has

the option to withdraw from the Plea Agreement if the Court imposes less than a

twenty-seven (27) year term of imprisonment or less than a life term of supervised

release. 1

RULE 11 AND THE SENTENCING STATUTES

The Guidelines, whichBookermade effectively advisory, 543 U.S. at 245,

125 S.Ct. 738, should be the starting point and the initial benchmark, but district

courts may impose sentences within statutory limits based on appropriate

consideration of all of the 3553(a) factors, subject to appellate review for

reasonableness, Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169L.Ed.2d 445. Of course, in this Rule 11(c)(1)(C) context, the district court is

entrusted with the discretion to accept or reject plea agreements. In the context of

charge bargains, that is dismissing charges in return for a plea to one or more

counts, the Ninth Circuit observed:

Because Rule 11 allows district courts to assess the wisdom of pleabargains, this power must be exercised reasonably, and [w]hen acourt establishes a broad policy based on events unrelated to theindividual case before it, no discretion has been exercised. Second,

The imposition of any fine, restitution, and conditions of supervised1

release are not part of the Rule 11(c)(1)(C) nature of this Plea Agreement.




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we noted that separation of power principles require the judiciary andexecutive to remain independent. Because deciding which charges to

bring is a matter of prosecutorial discretion and because categoricallimitations on charge bargains may force prosecutors to bringcharges they ordinarily would not, or to maintain charges they wouldordinarily dismiss, such limitations impermissibly intrude upon theexecutive's exclusive domain. Third, the Federal Rules require courtsto respect prosecutorial charging decisions by granting leave todismiss charges unless the dismissal is clearly contrary to manifest

public interest. Guided by these three considerations, and by a needto ensure that judicial discretion is exercised with due regard for

prosecutorial independence, we held that district courts mustreview individually every charge bargain placed before them.

In re Morgan, 506 F.3d 705, 710 (9th Cir. 2007)(citations omitted). As well, the

Ninth Circuit explained the role of the district court with respect to sentencing

bargains:

Rule 11 vests district courts with considerable discretion to assess thewisdom of plea bargains, to which attaches a concomitantresponsibility to exercise that discretion reasonably. We accordinglyhold that district courts must consider individually every sentence

bargain presented to them and must set forth, on the record, thecourt's reasons in light of the specific circumstances of the case forrejecting the bargain.

In re Morgan, 506 F.3d 705, 712 (9th Cir. 2007).

SENTENCING GUIDELINES

The starting point to sentencing is the correct calculation of the sentencingguidelines. In this case the parties stipulated to the guidelines calculation in the

plea agreement. In summary, that guideline calculation is as follows:

(a.) Base Offense Level

The Base Offense Level for Attempted Use of a Weapon of Mass

Destruction is level 28. See U.S.S.G. 2M6.1(a)(2).

(b.) Specific Offense Characteristics

The United States contends that the offense was tantamount to attemptedmurder resulting in an increase in the base offense level to 33 by way of a cross

reference to U.S.S.G. 2A2.1(a)(1). See U.S.S.G. 2M6.1(c)(2).




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An upward departure may be warranted since the offense created a

substantial risk of death or serious bodily injury to more than one person. See

U.S.S.G. 2A2.1, comment. (n.2).

(c.) Adjustments to Offense Level

The offense level should be increased three levels because the intended

victims were selected based on the actual or perceived race, color, national origin,

or ethnicity of any person. See U.S.S.G. 3A1.1(a).

(d.) Terrorism Adjustment Inapplicable

The terrorism adjustment, which provides for an additional 12 level increase

in the adjusted offense level and an automatic increase in the criminal history to

category VI, is inapplicable because the offense was not calculated to retaliate

against government conduct or to influence or affect the conduct of government by

intimidation or coercion. See U.S.S.G. 3A1.4(a) and (b).

The United States contends that an upward departure would be warranted

where the motive was to intimidate or coerce a civilian population. See U.S.S.G.

3A1.4, comment. (n.4). Such upward departure shall not exceed the top of the

guideline range that would have resulted if the adjustment under this guideline

would have applied. Id. (e.) Multiple Count Adjustment (Grouping)

Since the offense level for the civil rights crime, Count 3, is the offense

guideline applicable to the underlying offense (see U.S.S.G. 2H1.1(a)(1)), and is

supported by the very same act or transaction as Count 1, the counts are grouped

for purposes of the Guidelines computation. See U.S.S.G. 3D1.2(a).

Accordingly, there are no further multiple count adjustments.

(f.) Acceptance of ResponsibilityThe United States has conditionally agreed to recommend a two-level

reduction to the adjusted offense level for acceptance of responsibility and move




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for a one-level reduction for timely entering a plea of guilty. See U.S.S.G.

3E1.1(a) and (b).

(g.) Criminal History

Although the parties have made no agreement concerning Defendants

criminal history, the parties are aware of no prior criminal conduct.

(h.) Total Offense Level and Sentencing Options

Based on the uncontroverted sentencing guideline calculation set forth

above, the Defendant has a total offense level 33 with a criminal history category

I, resulting in an advisory guideline range of 135-168 months.

However, there are two invited departure provisions. First, if the offense

created a substantial risk of death or serious bodily injury to more than one person,

an upward departure may be warranted. See U.S.S.G. 2A2.1, comment. (n.2).

There is no further quantification provided by this guidelines invited departure.

A departure as small as a nine level increase would result in a sentencing range of

360 months to life under the guidelines.

Second, the United States contends that an upward departure would be

warranted here because the motive was to intimidate or coerce a civilian

population. See U.S.S.G. 3A1.4, comment. (n.4). In such cases an upwarddeparture would be warranted, except that the sentence resulting from such a

departure may not exceed the top of the guideline range that would have resulted if

the adjustment under this guideline had been applied. Id. If this invited departure

were to apply, Defendants maximum sentence would be capped at life, just like

the statute itself.

18 U.S.C. 3553(a)

The factors to be considered in imposing a sentence are set forth in 18U.S.C. 3553(a), which provides, inter alia:

The court shall impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2) of this subsection.




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The court, in determining the particular sentence to be imposed, shall

consider--

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant;

and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner; 2

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines--* * *

(5) any pertinent policy statement

Except that the Supreme Court held in Tapia v. United States, 131 S.Ct.2

2382, 2393 (2011), that 18 U.S.C. 3582(a) rejects imprisonment as a means of

promoting rehabilitation (a court may not impose or lengthen a prison sentence to

enable an offender to complete a treatment program or otherwise to promote

rehabilitation).




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* * *

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C.A. 3553.

The nature and circumstances of the offense and the history and

characteristics of the defendant.

The defendant pled guilty to the most serious charge returned by the Grand

Jury. The charges pled to in the Plea Agreement reflects the most readily provable

conduct. While the nature and circumstances of the offense are extremely serious,

no one was injured and no property damaged. Furthermore, the defendant has no

prior criminal history and is a veteran of the Armed Forces. The Plea Agreement

therefore strikes an appropriate balance between the seriousness of the offense and

the fact that the defendant is a first offender.

To reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense.

As reflected in the advisory guideline calculation, this is a serious crime.To serve a 27 to 32 year sentence for an attempted crime sends a message, loud

and clear that racism based violent crimes will not be tolerated in a civilized

society. To be released from prison when defendant is in his sixties after having

spent nearly half of his life and more than half of his adult life behind bars will

promote respect for the law and provide just punishment.

To afford adequate deterrence to criminal conduct.

A sentence of between twenty-seven and thirty-two years is a long term ofincarceration and affords adequate deterrence for hate motivated crimes.




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To protect the public from further crimes of the defendant.

The public is protected from the defendant through the long term of

incarceration. When the defendant is released, a lifetime term of Supervised

Release is contemplated which will provide oversight of the defendant and his

activities.

A sentence must be sufficient, but no greater than necessary to comply with

the purposes of sentencing. In addition, these additional considerations support

acceptance of the Plea Agreement:

Public Accountability

Public accountability and acceptance of responsibility has been

demonstrated by the defendant in the change of plea hearing. The defendant

publicly accounted for his actions in the Counts for which he entered pleas of

guilty. The Plea Agreement ensures satisfaction of the publics interest in this

prosecution. The Eastern Washington Community will have resolution and

accountability for these crimes. The Plea Agreement acknowledges that such

crimes will be punished severely.

Finality

The Plea Agreement focused on the most readily provable conduct andcomprehends all of the factual and legal elements to sustain a binding, final

judgment of guilty. Members of the Spokane Community and elsewhere have

waited for a resolution of this matter. The Plea Agreement provides closure by a

public acknowledgment of guilt followed by swift and severe punishment. There

will be no trial with the associated litigation risks, nor appeal with protracted

litigation involving the underlying facts and circumstances.

ExpediencyThese crimes occurred on January 17, 2011. Acceptance of the Plea

Agreement provides assurances to the community that the defendant was

identified, charged, pled guilty and was sentenced within one year of the event.




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The community will be assured that crimes of this nature will be investigated

completely, prosecuted swiftly, and sentenced accordingly.

CONCLUSION

Accordingly, the parties respectfully request the Court accept the plea

agreement and sentence the Defendant according to the terms contained therein.

The United States will argue that the Court should impose a thirty-two (32) year

term of incarceration and the Defendant will argue that the Court should impose a

twenty-seven (27) year term of incarceration.

Respectfully submitted this 1st day of November, 2011.

Michael C. OrmsbyUnited States Attorney

s/Joseph H. HarringtonJoseph H. HarringtonAssistant United States Attorney

s/Thomas O. Rice

Thomas O. RiceAssistant United States Attorney

s/ Roger J. Peven agreed to by telephone__________________________Roger J. PevenAttorney for the Defendant

s/ Kimberly A. Deater agreed to by telephone__________________________Kimberly A. Deater

Attorney for the Defendants/ Kailey E. Moran agreed to by telephone__________________________Kailey E. MoranAttorney for the Defendant




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I hereby certify that on November 1, 2011, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF System which will send

notification of such filing to the following, and/or I hereby certify that I have

mailed by United States Postal Service the document to the following non-

CM/ECF participant(s):

Mr. Roger PevenMs. Kimberly DeaterMs. Kailey E. MoranFederal Defenders of Eastern Washington and Idaho10 North Post, Suite 700Spokane, Washington 99201

s/Joseph H. Harrington

Joseph H. HarringtonAssistant United States Attorney



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