United States v. Reiche
| Decision Date | 05 December 2022 |
| Docket Number | 21-30275 |
| Citation | 54 F.4th 1093 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ellen Brennan REICHE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jesse Cantor (argued) and Christopher Sanders, Assistant Federal Public Defenders; United States Federal Public Defender's Office, Seattle, Washington, for Defendant-Appellant.
Teal Luthy Miller (argued), Philip Kopczynski, Sok Tea Jiang, and Thomas Merton Woods, Assistant United States Attorneys; Nicholas W. Brown, United States Attorney; Office of the United States Attorney, Seattle, Washington; for Plaintiff-Appellee.
Before: Morgan Christen, Kenneth K. Lee, and Danielle J. Forrest, Circuit Judges.
Clad in all-black outfits and masks, Ellen Reiche, along with an accomplice, surreptitiously approached a remote set of railroad tracks during the midnight hour. In her bag, Reiche carried wires, a drill, scissors, and gloves. Reiche then secretly placed a "shunt" on the tracks to tamper with the rail signaling system and force trains to halt. Her goal was to stop an incoming train carrying crude oil and thus strike a blow against the fossil fuel industry. Law enforcement, however, detected the two women, foiling their plan.
Reiche was convicted of Violence Against Railroad Carriers. 18 U.S.C. § 1992(a)(5). In imposing a sentence of twelve months and one day of imprisonment, the district court applied a sentencing enhancement for "recklessly" endangering the safety of a mass transportation vehicle. U.S. Sent'g Guidelines Manual (U.S.S.G.) § 2A5.2(a)(2) (U.S. Sent'g Comm'n 2021). Reiche now appeals, arguing that she was unaware of the risks posed by the shunt. We disagree. The district court correctly concluded that a reasonable person would understand that unexpectedly stopping a freight train, as it barrels down the tracks, poses an obvious risk of harm.
We also affirm the district court's rejection of a sentencing reduction for acceptance of responsibility. The court recognized that Reiche's decision to go to trial did not necessarily bar her from receiving a sentencing reduction. The court, however, determined that she had not shown genuine acceptance of responsibility.
Around midnight on Thanksgiving weekend in 2020, Ellen Reiche and Samantha Brooks snuck onto BNSF Railway's railroad tracks near Bellingham, Washington. The women wore masks and black clothing to evade detection. They also left their cell phones at home to avoid digital footprints that could place them at the railroad tracks.
Armed with knowledge gained from the internet, Reiche carried supplies to create a "shunt," a wire apparatus that connects to railroad tracks. A shunt disrupts the rail signaling system by indicating that the track is occupied or obstructed, thus causing incoming trains to stop with little notice. Reiche and Brooks successfully placed the shunt on the tracks, intending to "directly impede the fossil fuel supply chain" by stopping an incoming train carrying crude oil.
The Sheriff's Office deployed two deputies to the area after a motion-sensing camera captured images of Reiche and Brooks on the railroad tracks. When the first deputy arrived, he saw the women crouched down over the tracks. They walked away from the deputy after he identified himself, but they cooperated after the deputy jogged towards them. When the deputy questioned Reiche and Brooks, the women were evasive and untruthful.
The deputies later found a wire shunt concealed under rocks, near a section of the rail that looked like it had been cleaned of rust to improve connectivity between the shunt and the signaling system. The deputies arrested the women and searched Reiche's bag, in which they found wire, a drill with an attachment that could be used to clean rust off the rails, scissors, and gloves.
A grand jury indicted Reiche and Brooks with one count of Violence Against Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5). Brooks pleaded guilty, while Reiche opted for a jury trial.
At trial, the government called a BNSF supervisor to testify as an expert in rail signal systems. The expert explained that shunting is a "very dangerous act." A shunt causes the rail system to falsely detect that another train is on the tracks and thus signal for oncoming trains to stop. This can cause a "braking event," in which a train engineer must make an emergency stop if he or she lacks sufficient warning to gradually slow to a halt. If the engineer does not react in time, the train will automatically stop. BNSF witnesses explained that, whether because of an emergency stop or an automatic stop, suddenly stopping a train can cause the connectors between train cars to break, which can lead to decoupling or derailment. Only about a month before this incident, a train had separated "very violently" near Bellingham after a shunt forced a braking event.
The expert also testified that railroad crossings use the same signaling system as trains. A shunt can thus reduce or eliminate the warning times to motorists approaching a railroad crossing. The expert explained that Reiche's placement of the shunt within 200 feet of a railroad crossing would have interfered with the crossing signals. If a train had approached that shunt, the expert concluded that the train would have "very likely" reached the road before the first warning light engaged, endangering any drivers who might have been at the intersection.
Throughout the trial, Reiche's counsel maintained that the evidence failed to establish that she placed the shunt on the track. She also argued that the government failed to prove that the shunt was attached to the rails, that the track indication was so brief that it did not count as impairing the operation of the railway, and that something other than the shunt might have caused the manipulation of the signal system.
The jury voted to convict Reiche.
At Reiche's sentencing hearing, the parties addressed (1) whether Reiche "recklessly endangered" the safety of a mass transportation vehicle under U.S.S.G. § 2A5.2(a)(2), which carries a nine-point sentencing enhancement, and (2) whether the district court should credit Reiche's acceptance of responsibility for a downward sentencing adjustment.
Reiche argued that she was unaware of the risks posed by a shunt and thus should not receive a sentencing enhancement for recklessly endangering the safety of a mass transportation vehicle. To support her argument, Reiche submitted a letter explaining that she learned about shunting from eco-activist websites that advocated impeding the fossil fuel supply chain. She explained that she studied articles and reports that provided instructions on how to shunt a train but maintained that she never read about "any kind of danger associated with the act." Reiche thus argued that she thought that shunting was an "entirely safe" way to protest climate change and only realized its dangerousness when confronted with the government's evidence at trial. But one website printout that Reiche provided to the court described shunting as "rail sabotage" and advised readers to be "careful with yourselves, fingerprints, and DNA."
Reiche also submitted a letter to the court in which she stated that she accepted responsibility for her actions. She thus argued that, even though she elected to go to trial, she should be entitled to a two-level reduction for acceptance of responsibility.
The government disagreed. It argued that Reiche acted recklessly because a reasonable person would appreciate the risk of interfering with a railway signaling system. The government argued that it was "simply not believable" that Reiche thought shunting was "entirely safe." The government also noted that Reiche's preparations, actions at the railway, and evasive answers to law enforcement suggested that she understood the risks of her conduct. Finally, the government maintained that Reiche's conduct was "not consistent with what the guidelines consider a genuine acceptance of responsibility."
The district court agreed with the Probation Office's sentencing recommendation. It first found by clear and convincing evidence that Reiche was aware of the dangers of placing a shunt. The court reasoned that it is "common knowledge" that tampering with a train signaling system may cause a "catastrophic incident" and that Reiche's careful research and preparation—coupled with her high intelligence—made it unlikely that she was ignorant of these risks.
Next, the district court noted that it had the authority to grant a downward adjustment for acceptance of responsibility, even though Reiche went to trial but it declined to exercise that authority because it did not find Reiche's avowed remorse convincing. Reiche told the court that she thought shunting was an "entirely safe and peaceful form of protest." But the court explained that Reiche's persistent denial of guilt and the severity of her conduct undermined her claim that she regretted her actions. As the district court stated, it would have given " The court clarified that it was "not punishing [Reiche] for going to trial." Rather, it simply did not find facts to support that "she deserves the reward for that early acceptance of responsibility."
The court imposed a below-Guidelines sentence of twelve months and one day of imprisonment, plus three years of supervised release. Reiche timely appealed.
This court reviews "the district court's interpretation of the Sentencing Guidelines de novo, its factual findings for clear error, and its...
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