U.S. v. Wise

• Citation: 221 F.3d 140
• Decision Date: 31 July 2000
• Docket Number: No. 99-40247,99-40247
• Parties: (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHNIE WISE AND JACK ABBOTT GREBE, JR., Defendants-Appellants
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 140

221 F.3d 140 (5th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHNIE WISE AND JACK ABBOTT GREBE, JR., Defendants-Appellants

No. 99-40247

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

July 31, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeals from the United States District Court Southern District of Texas

Before WIENER and STEWART, Circuit Judges, and LITTLE, District Judge.^*

LITTLE, District Judge:

Defendants-appellants Johnie Wise ("Wise") and Jack Abbott Grebe, Jr. ("Grebe") appeal the judgment of criminal conviction entered on 5 February 1999, in the United States District Court for the Southern District of Texas, Brownsville Division. Appellants argue that a number of errors occurred with regard to the trial, as a result of which this Court should find the evidence insufficient to sustain their conviction or, alternatively, reverse and remand for a new trial. We AFFIRM the judgment and the district court in all respects.

I. BACKGROUND

A. Facts of the Case

In March 1998, while shopping at a store in Harlingen, Texas called the "Bargain Barn," John Cain ("Cain"), a self-employed computer consultant, met owner John Roberts ("Roberts") and employee Oliver Dean Emigh ("Emigh"). During the course of conversation, Roberts told Cain that he was a member of the Republic of Texas¹ ("ROT") and often needed documents typed for ROT legal matters. Cain offered his assistance and returned to the Bargain Barn the next day to discuss computer-related topics with Roberts. Cain briefly met Johnie Wise, another ROT member, during the meeting.

Cain started working for Roberts on a daily basis but was concerned about Roberts' ROT affiliation. On 10 March 1998, Cain communicated with the Federal Bureau of Investigation (FBI) in Brownsville. Cain recited the facts of meeting Roberts, including Roberts' request for secretarial assistance on ROT matters. The FBI detected no illegal activity based on what Cain told them. The information supplied by Cain was consistent with what the FBI already generally knew about ROT, and the FBI simply documented what Cain said. Cain was told that he could notify FBI Agent David Church ("Agent Church") if he had more information to relay.

One of the tasks that Roberts asked Cain to perform was to run checks for outstanding warrants against ROT members. Cain approached the FBI again on 17 March 1998, at which time Agent Church advised Cain that running warrant checks was illegal and that Cain should inform Roberts of the same.² Cain also told the FBI that Roberts had invited him to attend the ROT meetings. Agent Church told Cain that whether or not to attend was entirely Cain's decision. Cain chose to attend the meetings, at one of which Cain met Jack Abbott Grebe, Jr. Grebe visited Cain's residence regularly to make photocopies, and Wise began accompanying Grebe on the visits. During that time, Cain had no communication with the FBI.

On 24 March 1998, Cain met with Agent Church again and shared what had been discussed during and after a local ROT meeting. Some of the topics that had been discussed were "shopping out"³ and obtaining information regarding explosives from the internet.⁴ When Cain stated his belief that Roberts was trying to recruit him as a ROT member, Agent Church replied that whether or not to join was Cain's decision alone. According to the FBI, they did not recruit Cain as a confidential government informer at that time but did offer, without any solicitation, to reimburse Cain for his travel expenses.

Cain next met with Agent Church on 1 April 1998 and related more information about ROT discussions. Agent Church reimbursed Cain $235 for his travel expenses and gave the latter an unsolicited $200 for lost earnings as a result of Cain's attendance at the meetings. Agent Church advised Cain that certain activities discussed at the ROT meetings may be violations of state or local law but that as of yet nothing appeared to constitute a federal offense.

On 29 April 1998, Cain met again with Agent Church to tell the latter that Wise and Grebe had gone to Cain's residence the day before and had asked Cain to find the e-mail addresses of various government agencies, namely the Internal Revenue Service (IRS), the Drug Enforcement Administration (DEA), the Central Intelligence Agency (CIA), the FBI, the White House, the United States Attorney General, the Texas Attorney General, and the Texas Department of Public Safety. According to Cain, Wise and Grebe wanted to send threatening messages to the agencies and their employees if the demands of the ROT were not met. Wise discussed the idea of using pathogenic agents for diseases. Wise briefly described to Cain his proposal to convert an everyday Bic(R) lighter into a dart gun device from which a cactus thorn coated with some type of slow-acting poison or biological agent could be shot at unsuspecting persons. Agent Church told Cain that it was not against the law to voice one's thoughts in such a manner. But he also told Cain to listen carefully to what Wise and Grebe say when they next call him and to ask specific questions, if Cain was comfortable doing so, regarding the proposed dart gun device.

Moreover, Cain told Agent Church that Wise and Grebe had asked Cain if it was possible to do things on the internet anonymously, without leaving a trace. Cain told them that it was in fact possible through an internet service called "Anonymizer," and he showed them the website on his computer.

Cain eventually accepted the position of "Undersecretary of Trade and Commerce" for ROT. Between the April 29 meeting and Cain's next meeting with Agent Church on 20 May 1998, Wise and Grebe shared with Cain their angry sentiment that the "change in power" (referring to the re-establishment of Texas as a Republic, with its own government) was taking too long. They proposed having Emigh draft a letter to send out to the various government agencies previously mentioned. Not long thereafter, Wise and Grebe gave Cain a handwritten letter that laid out their plan, specifically targeting the IRS and the DEA. Wise and Grebe made some changes to that letter, and Cain typed the letter into the computer at their instruction.

On 20 May 1998, Cain met with Agent Church to describe the plan in greater detail and to deliver a copy of the letter. Agent Church told Cain that the FBI was interested in any information Cain received and that Agent Church was recommending the opening of an FBI investigation. Furthermore, he told Cain to get detailed information regarding the plan if Cain met again with Wise and Grebe.

A few days later, Wise gave Cain a third and final draft of the letter, titled "Declaration of War." Grebe was present and participated in making the changes. Cain typed the letter into the computer as instructed, printed several copies of the document, and saved it on a computer disk. Wise and Grebe asked Cain to find the e-mail addresses of the select government agencies and to send the letter anonymously via e-mail such that it would not be traced back to his computer. They discussed the idea of using a computer terminal at the Brownsville public library and transmitting the letter through the Anonymizer website so that if it were traced somehow, it would be traced to the library rather than to Cain.

Grebe later handed Cain another typed document, a follow-up letter to the first that was to be sent if the response to the first letter was deemed unsatisfactory.⁵ If the response to the second letter in turn were deemed unsatisfactory, then the next step in the plan was to act upon the threat by actually infecting people with a biological agent. According to the plan, Wise was to procure the biological agent and to build the delivery device. Wise discussed the possibility of using such agents as botulism, rabies, and anthrax. According to Cain, Wise and Grebe urged Cain to send the Declaration of War e-mail because they thought he was taking too long to do so.

On 1 June 1998, Cain handed over to the FBI, who by now had opened an official investigation, a copy of the final draft of the Declaration of War and a copy of the Rossotti letter. Agent Church told Cain not to e-mail anything until he received proper approval. He again told Cain that the latter should obtain as much specific information as possible and notify the FBI if anything of an emergency nature arose.

The case became assigned to FBI Agent Franklin Sharkey ("Agent Sharkey"). Cain consented to Agent Sharkey's request to record their conversations. Subsequently, the FBI set up electronic surveillance and authorized Cain to send e-mails in an undercover investigation. The FBI rejected Cain's idea of using a public library computer and suggested instead that Cain use his home computer. On 11 June 1998, Cain called Wise and Grebe to tell them he was ready. They set the date and time for sending the Declaration of War for the following evening.

Grebe arrived at Cain's residence on 12 June 1998, and as planned, the Declaration of War was sent via e-mail to the United States Department of Justice, the DEA, the United States Treasury, the FBI, the United States Customs, and the Bureau of Alcohol, Tobacco, and Firearms.⁶ Cain called Wise to tell him that the Declaration of War had been sent. A tape recording of their conversation indicates that Wise was aware that the e-mails would be sent and was abreast of the situation overall.

After the first set of e-mails were sent, Cain continued to meet with Wise and Grebe.⁷ Grebe raised the notion of taking the next step, namely sending the follow-up letter to the Declaration of War. Moreover, both Wise and Grebe discussed who should be the first targeted victim, and they chose a Texas state judge whom Roberts purportedly disliked because she had not allowed ROT members to defend themselves pro se in her Texas state court.⁸ They planned to stalk her, learn her movements, and...