In United States v. Crawford, 16-4261-cr (Kearse, Cabranes, Wesley), the Second Circuit affirmed via summary order the terrorism-related conviction and sentence of a Klansman in upstate New York. This case represented the first conviction under the 2004 law barring the acquisition and use of so-called “dirty bombs” and provided a rare opportunity for the Circuit to interpret several terrorism statutes. It is most notable, however, for its bizarre fact pattern—involving Ku Klux Klan business cards, a modified x-ray machine, and a plot to kill President Barack Obama and an unknown number of Muslims. In August 2015, Glendon Scott Crawford—a Navy veteran and an avowed member of the Ku Klux Klan—was convicted of several counts of domestic terrorism and was subsequently sentenced to 30 years’ imprisonment for his crimes.
This disturbing case involved a defendant who bragged that friends described him as a cross between Darth Vader and Forrest Gump.[1] His deranged plan, thwarted by the government, involved the use of a weapon that might have emerged from an Ed Wood movie.[2] Crawford had planned to modify an industrial x-ray machine so that it would emit deadly levels of radiation he could then release on unsuspecting Muslims and President Barack Obama. Crawford sought the assistance of his fellow Klansmen in developing the device. He also contacted several Jewish organizations and the Israeli Embassy in Washington, D.C. for help in acquiring an X-ray device to kill “enemies of Israel.” His plan was promptly reported to the FBI, which set up an undercover operation to thwart the plot. Crawford had gone as far as successfully testing a remote trigger for the device and scouting specific targets—including the Governor’s Mansion in Albany—at the time he was arrested.
Crawford challenged his conviction and sentence on several grounds, including: (1) that the government entrapped him and subjected him to outrageous conduct; (2) that his conduct was not covered by the statutes under which he was convicted, which are related to the use of dirty bombs and weapons of mass destruction; (3) that the trial court improperly allowed the introduction of evidence related to his ties to the Ku Klux Klan and of discrete portions of his recorded conversations; (4) that the trial court erred in refusing to charge the jury with the defense of renunciation; (5) that the trial court erred in refusing to dismiss counts one and two on the grounds they were duplicitous; (6) that the trial court erred in refusing to dismiss count one as unconstitutionally vague; and (7) that the trial court erred in applying a terrorism enhancement to his Guidelines calculation. The Second Circuit rejected each of these arguments.
With respect to Crawford’s claim of entrapment, the Court noted that he essentially conceded his predisposition to commit the crimes for which he was convicted by admitting that he came up with the idea of developing an x-ray weapon to kill Muslims and that he sought the support of Jewish organizations to do so. The mere fact that Crawford did not have the resources to build his death ray without the government’s assistance in providing parts and financing was insufficient to establish an entrapment defense. The Court similarly ruled that Crawford had presented no evidence of “outrageous government conduct” that would justify dismissing the indictment on these grounds.
The Court rejected Crawford’s arguments that his plan to use a modified x-ray machine did not fall within the scope of the statutes under which he was convicted. Crawford was convicted under count one of the indictment for violating 18 U.S.C. § 2332h, which makes it “unlawful for any person to knowingly produce, construct, otherwise acquire…or possess and threaten to use…any device or other object that is capable of and designed or intended to endanger human life through the release of radiation or radioactivity.” Crawford argued, citing legislative history, that this statute pertains solely to so-called dirty bombs—conventional explosives that release radioactive contaminants. He further argued that there is a significant difference between a dirty bomb that “releases” radiation and a planned device like his that “disperses” or “emits” radiation, the use of which Congress outlawed under § 2332i, which was enacted after Crawford’s conviction. The Court, applying plain error review because this claim was first raised on appeal, rejected this argument based on the plain meaning of the term “release” and the legislative history of § 2332i. The Court similarly rejected Crawford’s arguments that his x-ray device was not a “weapon of mass destruction” within the meaning of 18 U.S.C. §§ 842 and 2332a, which formed the basis for his conviction under counts two and three of the indictment.
The Circuit also affirmed several of the district court’s evidentiary rulings during the trial. Specifically, the Circuit held that the district court did not abuse its discretion in admitting evidence of Crawford’s ties to the Ku Klux Klan because these ties were relevant and probative of the crimes with which he was charged. For example, Crawford presented undercover agents with a business card from his Klan organization (the KKK distributes business cards?) as a means of establishing his credentials, and he also turned to the Klan for support in gathering the resources for his x-ray weapon. Similarly, evidence related to Crawford’s political beliefs was directly relevant to the motivation for his attempted scheme. The Circuit also affirmed the district court’s decision to allow the government to play only portions of Crawford’s recorded conversations at trial because the complete recordings were entered into evidence and Crawford was provided with an opportunity to play other excerpts of the recordings during trial, but declined to do so.
The Circuit also rejected Crawford’s challenge to the jury charge. Although the panel declined to decide whether renunciation was a defense, it held that no such charge was warranted because Crawford never renounced and ended his plot. His “occasional protestations and doubts” were insufficient to constitute renunciation within the ordinary meaning of the term.
Finally, the Circuit affirmed the district court’s ruling on his pre-trial motion to dismiss the indictment as duplicitous and unconstitutionally vague “substantially for the reasons cited by the district court.” The Circuit also affirmed the district court’s application of the terrorism enhancement—which defines the federal crime of terrorism as seeking to influence or affect the conduct of the government—“substantially for the reasons cited by the district court.”
The use of undercover operations can be controversial where the evidence shows that a defendant never intended to carry out his or her crimes. In the absence of predisposition, a conviction in a sting operation can be reversed based on entrapment. Here, while the facts are sensational, it does appear that the defendant had a real intention to develop a death ray to kill President Obama and Muslims and possibly others. The FBI stated after the trial that “[n]o matter how extraordinary the plot seemed, the threat was real.”[3] His membership in the Ku Klux Klan is itself suggestive of his genocidal world view, and it is hard to disagree with the Circuit’s affirmance of this conviction.
[1] Robert Gavin, “Trial no box of chocolates for ‘terrorist,’” Albany Times Union (Aug. 26, 2015) (“[W]ho but a diabolical super-villain wants to annihilate thousands of people using a death ray?”).
[2] See “Plan 9 From Outer Space,” found at https://en.wikipedia.org/wiki/Plan_9_from_Outer_Space (describing a “doomsday weapon”).
[3] Supra, Gavin (quoting FBI Agent-in-Charge Andrew Vale).
