U.S. v. Polk

• Decision Date: 17 July 1997
• Docket Number: No. 96-40836,96-40836
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray POLK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 286

118 F.3d 286

UNITED STATES of America, Plaintiff-Appellee, v. Charles Ray POLK, Defendant-Appellant.

No. 96-40836.

United States Court of Appeals Fifth Circuit.

July 17, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

10, 1997.

Jim Middleton, Tyler, TX, for Plaintiff-Appellee.

Wayne R. Dickey, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Charles Ray Polk, a car salesman for King Chevrolet in Tyler, Texas, boasted of having significant financial resources ($150 million) and the desire to blow up federal buildings and kill federal employees across the country--this despite the fact that Polk could hardly afford to pay his bills. A jury rejected Polk's argument that his "outlandish" suggestions were mere puffery, concluded that Polk was deadly serious, and convicted him of attempted use of a weapon of mass destruction (Count 1); solicitation to commit a crime of violence under 18 U.S.C. § 844(f) (Count 2); solicitation to commit a crime of violence under 18 U.S.C. § 1114 (Count 3); possession (carrying) of a firearm during a crime of violence (Count 4); unlawful possession of a machine gun (Count 5); and aiding and abetting the making of a false statement to a federally licensed firearms dealer (Count 6). Polk was sentenced to 249 months' imprisonment. He now appeals.

We affirm Polk's convictions on Counts 1, 2, 3, and 5 and reject Polk's claims of legal error. However, finding insufficient evidence, we reverse Polk's convictions on Counts 4 and 6 and remand this case to the district court for resentencing.

BACKGROUND

In March 1995, a Texas state trooper informed a special agent of the ATF that Douglas Davidson (a CI known as "Big Dave") had contacted him and informed him that Polk had requested a quantity of plastic explosives and machine guns. Davidson stated that Polk needed the weapons to assassinate four police officers and a female judge. The ATF agent recalled that a year prior to Davidson's revelations, the agent had received an anonymous tip that Polk had made it known that he wanted to accumulate a cache of weapons and use them in an attack on the IRS in Tyler.

In early April 1995, an ATF agent interviewed Davidson about Polk. Davidson On April 6, 1995, Davidson introduced Jackie Grier (an undercover cop) to Polk. As they were speaking, Grier observed a shotgun in the front seat of Polk's vehicle. During their initial meeting, Polk asked for Grier's assistance in obtaining a large quantity of machine guns and explosives, including rocket propelled grenades and hand grenades. Polk told Grier that he was interested in purchasing 2,000 pounds of plastic explosives and detonators, that he would have $150 million to spend, and that he was responsible for procuring an arsenal of weapons for an organization dedicated to restoring the United States to its "common law roots." This organization, according to Polk, was planning a "massive offensive" during July 1995, an offensive that would include destroying Polk met with Grier again two days later, on April 7, 1995. During that meeting, Polk provided Grier with a handwritten "wish list" of weapons and explosives he wanted Grier to acquire. The list included plastic explosives and detonators; one case of grenades; one pair of night-vision binoculars; one light tank anti-weapon system; one rocket-propelled grenade; and one light machine gun launcher.

told the agent that he (Davidson) had purchased guns (ranging from pistols to semi-automatic weapons) for Polk at Polk's request. Between October 1994 and January 1995, Davidson purchased approximately 43 guns for Polk. Davidson also stated that on one occasion, Polk paid Davidson an extra $300 to have a semi-automatic rifle converted into a machine gun; asked him (Davidson) to obtain plastic explosives; and asked him (Davidson) to provide a group of men to ambush and shoot law enforcement officers that might survive an area Polk planned to booby trap with plastic explosives. (through the use of plastic explosives) several IRS buildings throughout the nation.

Grier and Polk thereafter had a series of meetings, some by telephone, some in person. During these meetings, Polk again discussed purchasing weapons and explosives; Polk also spoke of the upcoming offensive. On June 24, 1995, Davidson called Polk and asked if they could meet. When Polk arrived at the meeting, Davidson informed him that he had located two individuals who would be willing to assist Polk in the planned bombings. Later that day, Polk, Davidson, undercover ATF agent Wendall Frost, and an undercover Tyler police officer met at a Tyler motel. Frost posed as a mercenary. During the meeting, Polk stated that he was third in command of an organization known as "Constitutional America." Polk reiterated his desire to destroy IRS buildings by using plastic explosives. Polk asserted that to bring each of these buildings down, four or five explosive charges must be set. Two-hundred pounds of explosives per building would, according to Polk, bring the buildings down; "I want them to the ground," Polk said. At this point, Polk also stated that he had no concern for the loss of human life.

Polk solicited Frost's help in hiring people to assist in the attacks. Polk thought that 50-100 persons would be needed and that each would be paid $20,000 and supplied with weapons. Polk stated that he needed people who knew how to use M-60 and Uzi machine guns and who "don't mind shooting people if they get in the way." Polk was asked whether he had any photographs of the targeted buildings, and he responded that the photos and layout would arrive later.

On June 29, 1995, Polk and Grier met at Polk's home and discussed Polk's failure to produce the necessary funds to obtain the weapons Polk sought. Polk stated that the money was not forthcoming because the Government had blocked the organization's funds. Polk then stated that he wanted to increase his original order. According to Polk, he now needed 1,200 pounds of plastic explosives; 30 machine guns; 6 Uzi sub-machine guns; and 8 pairs of night goggles. While at Polk's home, Grier noticed two semi-automatic rifles, a .22 caliber pistol, and several cans of gunpowder commonly used in reloading ammunition. On July 14, 1995, Polk paged Grier several times. Grier called Polk and Polk wanted to know the prices for the plastic explosives and the machine guns.

On July 17, 1995, Polk, using the alias David Williams, deposited two rolls of film at a photo service in Tyler. The film contained 43 photographs of the exterior of the IRS building in Austin, Texas. On July 18, 1995, Grier called Polk and gave him the prices for the weapons and explosives. During the conversation, Polk asked Grier if he (Grier) was in possession of a gun belonging to Polk that was to be converted to fire fully automatic. Grier told Polk that the gun was being converted as requested.

Later that same day (July 18, 1995), Polk met with Frost at a Tyler motel. During the meeting, Polk provided Frost with photographs of the Austin IRS building. Frost asked Polk if he took the photos himself, and Polk replied that he had a friend in Austin take them. Polk told Frost that 3,500 people worked in the Austin building. Polk then began discussing the amount of explosives it would take to bring down the building. In doing so, Frost commented that a lot of people could die from the explosion. Polk replied, "Doesn't hurt my feelings." When Polk was then told that people would die who had nothing to do with the IRS, Polk replied, "Well, all I can say, gentlemen, is shit happens." Polk drew diagrams of the streets, a sketch of the building, and identified locations where the bombs should be placed. Polk told Frost that only two other people (the number one and two men in Constitutional America) knew of the plans, that these two individuals would help obtain the funds for the "project," and that the date of the Polk also produced a map of the United States and singled out other cities in which IRS buildings were located, buildings Polk wanted to bomb. Polk stated that these other buildings each contained 500-600 people. Polk eventually singled out nine buildings he wanted to bomb. Polk stated his primary aim was to "hit" the agents. At one point during the meeting, Polk commented that he wanted to blow the buildings up early in the morning so that secretaries would not get hurt. When Frost told Polk that these bombings would provoke a nationwide investigation by federal law enforcement agencies, Polk discussed the possibility of bombing ATF and FBI offices as well. At the conclusion of the meeting, Frost asked Polk for some money to help with expenses. Polk stated that he was broke and that he was behind on his rent and bills.

"offensive" had been pushed back to September 1995.

July 28, 1995 is a date Polk most assuredly would rather forget. That day, he met with Grier at an abandoned car wash located just outside Tyler. Grier told Polk that his (Polk's) rifle could not be successfully converted into a machine gun. Polk was offered another machine gun in its place. After taking possession of the machine gun, Polk was arrested by tactical officers hidden within the abandoned car wash.

PROCEDURAL HISTORY

On September 12, 1995, Polk was charged in a six-count superseding indictment ¹ with violations of the following federal statutes: 18 U.S.C. § 2332a, attempted use of a weapon of mass destruction (Count 1); 18 U.S.C. § 373, solicitation to commit a crime of violence under § 844(f) (Count 2); 18 U.S.C. § 373, solicitation to commit a crime of violence under § 1114 (Count 3); 18 U.S.C. § 924(c)(1), possession of a firearm during a crime of violence (Count 4); 18 U.S.C. § 922(o )(1), unlawful possession of a machine gun (Count 5); and 18 U.S.C. § 922(a)...