Patriot Games

By Jennifer Hahn, LA CityBeat. Posted May 16, 2005.

William Cottrell admits he doesn't like SUVs. He even admits to spray-painting "smog machine" onto some SUVs. And he was convicted of being part of a now-infamous San Gabriel Valley arson spree that caused nearly $2.5 million in property damage to SUVs at private residences and dealerships in August of 2003. But is he a terrorist?

Cottrell has the USA Patriot Act to thank for the extra three years and four months he may serve in federal prison for that night of indiscretion. On April 18, U.S. District Judge R. Gary Klausner ruled that the former CalTech graduate student had engaged in "domestic terrorism" by targeting the fuel-inefficient vehicles, since his actions were seemingly meant to intimidate a civilian population, namely SUV-buyers. Cottrell's defense expected the judge to give the physics genius the mandatory minimum sentence of five years. With the sentence enhancement, Cottrell could end up wasting in prison for nearly eight and a half years.

"The section of the U.S. Sentencing Guidelines under which they were looking is probably unconstitutional in the way it's framed," says Cottrell's lawyer, W. Michael Mayock.

That particular section of the guidelines was amended in 2002 in response to the Patriot Act. Previously, Cottrell could only have faced additional years in prison for terrorism if the court decided that his crime was meant to "influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." Under the new guideline, his supposed intent to "intimidate or coerce a civilian population" was enough to qualify as terrorism.

While the government proved beyond a reasonable doubt that Cottrell damaged a lot of property, Mayock points out that they never did prove to the jury that his motive was to "intimidate or coerce a civilian population." The judge made this determination on his own. Mayock believes that recent U.S. Supreme Court decisions require the government to prove to a jury that Cottrell actually did intend to influence a civilian population if they want to use the domestic terrorism sentencing enhancement.

Timothy Edgar, a legislative counsel at the ACLU, is familiar with these cases, particularly U.S. v. Booker, which he says will change the way sentencing enhancements are applied for all crimes. "For a very long time, everyone was laboring under the assumption that sentencing enhancements could be determined by a judge without a jury ... under basically a lower standard of proof," says Edgar. "What Booker said, what the Supreme Court said, is that no, because people have a right to trial by jury you have to prove facts that are relevant to sentencing enhancements before a jury."

Assistant U.S. Attorney Beverly Reid O'Connell concedes that the prosecution did not address Cottrell's intent in committing his crimes. "The intent element in the government's case was whether or not he intended to commit arson," she says. "His motivation for doing that was not an element of the government's burden." But she doesn't think that Booker affects sentencing practices in this case and also points out that the defense admitted in its own position paper that Cottrell's actions were "intended to influence the consumer's choice of types of vehicles to purchase."

While Booker advises that matters relevant to sentencing should be proven to a jury, the Patriot Act, in its definition of domestic terrorism, only requires that crimes "appear to be intended" to coerce and intimidate either a civilian population or the government to qualify as terrorism. Seeking to redress this and other disturbing elements of the Patriot Act, civil liberties groups are supporting the "Security and Freedom Ensured Act of 2003" (a.k.a. the "SAFE Act"), which would make intent "something you have to prove, not that you have to prove that they appeared to intend," says Edgar.

Jennifer Hahn, a freelance writer in Los Angeles, was formerly an editorial fellow at Mother Jones.

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