United States v. Lampley

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
OCT 20 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. Nos. 96-7074
97-7016
WILLIE RAY LAMPLEY, a/k/a
Ray Lampley,

Defendant - Appellant,
and

CECILIA LAMPLEY; LARRY WAYNE
CROW; and JOHN DARE BAIRD, a/k/a
J. D. Baird,

Defendants.
____________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. Nos. 96-7075
97-7010
CECILIA LAMPLEY,

Defendant - Appellant,
and

WILLIE RAY LAMPLEY, a/k/a Ray
Lampley; LARRY WAYNE CROW; and
JOHN DARE BAIRD, a/k/a J. D. Baird,

Defendants.
____________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 96-7077

JOHN DARE BAIRD, a/k/a J. D. Baird,

Defendant - Appellant.

__________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 95-CR-63-S)
_________________________

John C. “Jay” Williams III, Muskogee, Oklahoma, for Defendant-Appellant Willie Ray
Lampley in No. 96-7074.

(Willie Ray Lampley, pro se, submitted on the brief in No. 97-7016.)

Mark Green, Muskogee, Oklahoma, for Defendant-Appellant Cecilia Lampley in No.
96-7075.

(Cecilia Lampley, Fort Worth, Texas, pro se, submitted on the brief in No. 97-7010.)

Gene V. Primomo (James G. Wilcoxen of Wilcoxen, Wilcoxen & Primomo with him on
the brief), Muskogee, Oklahoma, for Defendant-Appellant John Dare Baird in No.
96-7077.

Douglas Adam Horn, Assistant United States Attorney (John Raley, United States
Attorney, and D. Michael Littlefield, Assistant United States Attorney, with him on the
briefs), Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee
United States of America.
_________________________

2
Before SEYMOUR, Chief Judge, McKAY, and MURPHY, Circuit Judges.
_________________________

McKAY, Circuit Judge.
_________________________

This opinion consolidates for the purpose of disposition the appeals of

three related cases. 1 Defendants Mr. Willie Ray Lampley; his wife, Mrs. Cecilia

Lampley; and Mr. John Dare Baird were convicted of conspiring to knowingly

make and possess a destructive device and maliciously damage and destroy, by

means of fire or explosives material, a building and other real and personal

property used in interstate commerce and used in an activity affecting interstate

commerce in violation of 18 U.S.C. §§ 2, 371, and 844(i), and 26 U.S.C. §§ 5822,

5841, 5845, 5861(d) & (f), and 5871. Mr. Lampley and Mr. Baird also were

convicted of the use or carrying of a firearm during and in relation to the

commission of a crime of violence, the predicate offense of conspiracy, pursuant

to 18 U.S.C. § 924(c)(1). Mr. Lampley also was convicted of solicitation of a

government informant to commit a crime of violence against the United States, in

violation of 18 U.S.C. §§ 2, 373, and 844(i). These convictions stemmed from

1
Mr. Lampley appeals his convictions, Nos. 96-7074 and 97-7016; Mrs. Lampley
appeals her conviction, Nos. 96-7075 and 97-7010; and Mr. Baird appeals his
convictions, No. 96-7077. Defendants were tried together in district court and argued
their appeals in this court on the same day.

3
Defendants’ endeavors to build and possess an explosive device to damage or

destroy the Anti-Defamation League building in Houston, Texas, and the Southern

Poverty Law Center in Montgomery, Alabama. These activities took place

between August and November 1995. On appeal, each defendant alleges

numerous grounds for reversal. We address each allegation in turn, but

consolidate those arguments common to the defendants. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm.

I.

Defendants Mr. Lampley, Mrs. Lampley, and Mr. Baird submit that their

Sixth Amendment right to a fair trial by an impartial jury was unduly prejudiced

by the influence of the April 19, 1995 bombing of the Alfred P. Murrah Federal

Building in Oklahoma City, Oklahoma. The details of their claim are: The trial

coincided with the one-year anniversary of the Oklahoma City bombing; the

corresponding presence of security forces was excessive and media publicity

pervasive; a memorial wreath was placed on the courthouse door, and a memorial

sign was in the window of a Federal Protective Service vehicle parked in front of

the courthouse; and statements relating to the Oklahoma City bombing were

admitted into evidence.

4
 A. There is no dispute that Defendants were tried during the general

anniversary period of the Oklahoma City bombing. 2 However, Defendants failed

to make any objection to the timing of the trial on the basis that it would coincide

with the one-year anniversary of the Oklahoma City bombing. 3 There is no

evidence in the record that Defendants made any request for a change of venue or

any request for a delay due to this circumstance. We, therefore, apply a plain

error analysis. Fed. R. Crim. P. 52(b); United States v. Atkinson, 297 U.S. 157,

160 (1936). The plain error rule requires there be “an ‘error,’ that is ‘plain,’ and

that ‘affect[s] [the defendant’s] substantial rights.’” United States v. Olano, 507

U.S. 725, 732 (1993) (quoting Fed. R. Crim. P. 52(b)). In Johnson v. United

States, ___ U.S. ___, 117 S. Ct. 1544 (1997), the Supreme Court clarified the

analysis by confirming that a court should invoke its remedial discretion to notice

a forfeited error only if that error “‘seriously affect[s] the fairness, integrity or

2
The trial began on April 1, 1996, and ended on April 24, 1996.
3
Like many trials, the timing of this trial was an ever-changing entity. The
original jury trial date was set for January 3, 1996. Defendants moved for, and were
granted, a continuance on December 12, 1995, so they could properly deal with the large
volume of discovery documents in preparation for trial. On December 22, 1995, the
district court reset the jury trial for January 22, 1996. On January 18, 1996, the court
ordered that the jury trial date of January 22, 1996, be stricken, over objections by
Defendants. The government made a motion on February 12, 1996, for an order to set the
jury trial for March 4, 1996. The court denied this motion, explaining that a March 4,
1996 trial setting would not be feasible due to the need for additional time to implement
and coordinate increased safety and security measures. Instead, the jury trial was set for
April 1, 1996.

5
public reputation of judicial proceedings.’” Id. at 1550 (citation omitted)

(quoting Atkinson, 297 U.S. at 160).

Defendants’ trial began on April 1, 1996, in the Eastern District of

Oklahoma. On April 12, 1996, the trial was recessed until April 22, 1996. On

April 24, 1996, a jury deliberated and returned guilty verdicts on all counts for

each defendant. There is no evidence in the record that the government had any

control over the timing of this trial or that the district court had any intent to hold

Defendants’ trial during the anniversary of the Oklahoma City bombing. In fact,

the record suggests the contrary. The government made a motion on February 12,

1996, for an order to set the jury trial for March 4, 1996. The district court

denied this motion for the reason that it needed “additional time to implement and

coordinate increased safety and security measures.” R., Vol. I, Exh. 189.

Additionally, on April 1, 1996, the district court told the lawyers, defendants, and

potential jury that it hoped to shorten the expected duration of the trial to two

weeks by working longer days and taking shorter recesses. A two-week trial

would have ended around April 12, 1996. There is insufficient evidence to

suggest that the trial’s timing was anything other than coincidental. Defendants

have not cited facts in the record sufficient to show either that their substantial

rights were prejudiced or that the fairness, integrity, or reputation of the judicial

6
proceeding was seriously affected. We conclude that their claims do not rise to

the level of plain error.

However, while we have disposed of the issue of intent, the critical issue is

the effect of the Oklahoma City bombing on the jury. The district court is

responsible for guaranteeing that the jury is fair and impartial. See Frazier v.

United States, 335 U.S. 497, 511 (1948). It is a well-established principle that

“one accused of a crime is entitled to have his guilt or innocence determined

solely on the basis of the evidence introduced at trial, and not on grounds of

official suspicion . . . or other circumstances not adduced as proof at trial.”

Taylor v. Kentucky, 436 U.S. 478, 485 (1978). Where Defendants raised in the

district court specific objections to the effect of the Oklahoma City bombing, we

will review that court’s constitutional findings de novo. United States v. Al-

Smadi, 15 F.3d 153, 154 (10th Cir. 1994) (citing Nieto v. Sullivan, 879 F.2d 743,

749-54 (10th Cir.)), cert. denied, 493 U.S. 957 (1989).

B. Defendants contend that the security measures and number of officers

present in the courtroom and courthouse during the trial were excessive and

prejudiced their right to a fair trial in violation of Holbrook v. Flynn, 475 U.S.

560 (1986). This specific allegation was raised in the district court, and we

therefore review de novo. In Holbrook, the Supreme Court defined the standard

7
by which security presence in the courtroom may be measured in relation to a

defendant’s constitutional right to a fair trial. Holbrook states:

All a . . . court may do . . . is look at the scene presented to jurors
and determine whether what they saw was so inherently prejudicial as
to pose an unacceptable threat to defendant's right to a fair trial; if
the challenged practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is over.

Id. at 572. The Court determined that “the conspicuous, or at least noticeable,

deployment of security personnel in a courtroom during trial” is not an inherently

prejudicial practice and does not violate the fundamental principles of the

criminal justice system. Holbrook, 475 U.S. at 568-69. The Court noted that

guards have become commonplace in most public places “so long as their

numbers or weaponry do not suggest particular official concern or alarm.” Id. at

569; see Hopkinson v. Shillinger, 866 F.2d 1185, 1218 (10th Cir. 1989) (security

measures including armed and unarmed guards and magnetometer were not so

inherently prejudicial as to pose unacceptable threat to defendant’s right to fair

trial), cert. denied, 497 U.S. 1010 (1990).

The facts of this case do not support a claim that the Holbrook standard

was violated. In recognizing the presence of security measures, the trial judge

specifically stated that “certain precautions . . . have to be taken to protect the

people who work [in the courthouse] and to protect [the lawyers].” R., Vol. XV

at 542. The judge noted, to clarify the record, that there were not “that many

8
Marshals up here in front of the rail,” and that he could distinguish the marshals

in the back of the courtroom from spectators or press only because he had met

them. Id. Unlike the state troopers involved in Holbrook, the marshals in the

back of the courtroom were in plain clothes and unarmed. The judge found that

the scene presented to the jurors was not so inherently prejudicial as to impair

Defendants’ right to a fair trial. This finding is not erroneous. Moreover,

Defendants do not cite facts in the record that are sufficient to show actual

prejudice. We will not presume prejudice where the record does not support a

claim of inherently prejudicial activity or incident.

C. Defendants also contend that the excessive publicity surrounding the

anniversary of the Oklahoma City bombing denied them a fair trial. As noted

above, Defendants failed to object or move for a change of venue prior to the

trial’s commencement, despite their knowledge that the trial would last

approximately three weeks and would coincide with the anniversary of the

Oklahoma City bombing. However, we review de novo because Defendants

raised the issue affecting their constitutional rights on April 22, after the trial’s

recess.

The facts in the record do not support Defendants’ suggestion that the jury

did anything other than follow the court’s admonitions to not discuss the case

9
with anyone, to refrain from viewing any publication or broadcast relating to the

case, and to remain impartial. According to the record, after the trial’s recess the

district court made a general query of the jurors concerning any influence that

might have affected their impartiality. 4 The record shows that the jurors did not

express any doubt about their ability to remain impartial or any concern about the

publicity surrounding this case or the Oklahoma City bombing anniversary.

Additionally, the record does not suggest that the district court improperly relied

on the fundamental principle that the jurors would abide by the court’s

instructions and admonitions and remain impartial. See Richardson v. Marsh, 481

U.S. 200, 206 (1987) (endorsing “the almost invariable assumption of the law that

jurors follow instructions”); Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)

(“The Court presumes that jurors . . . attend closely . . . , strive to understand, . .

. and follow the [trial court’s] instructions” in a criminal case.). The trial court

did not err in finding that the media coverage of this case and the Oklahoma City

bombing anniversary did not deny Defendants a fair trial.

D. Defendants further argue that a memorial wreath on the courthouse door

on April 22, 1996 (undoubtably seen by the jurors), and a memorial sign in the

window of a Federal Protective Security vehicle parked in front of the courthouse

4
See infra Part I.D.

10
on April 22, 1996 (probably visible to the jurors), unfairly prejudiced the jury and

denied them a fair trial. 5 When defense counsel brought the existence of the

wreath and the sign to the court’s attention, the judge instructed the Assistant

United States Attorney, “as an officer of this Court, . . . to see that there aren’t

any subtle harpoons out there that you can help prevent.” R., Vol. XXIII at 2524.

In effect, the judge immediately directed that any possibly offending items be

removed from the realm of the trial.

The record also reflects a discussion between the trial judge and counsel

about the form of inquiry to the jurors concerning these items. The judge faced

the dilemma of how to make a proper inquiry without further drawing attention to

the Oklahoma City bombing. He opted to make a general inquiry. He asked the

jurors if they had seen, heard, or experienced anything that now would prevent

them from being fair and impartial, either to the defendants or the government.

The jurors did not indicate that their impartiality had been tainted. Additionally,

the record shows that the judge allowed the defense and prosecution to voir dire

the jurors during jury selection and that he made regular admonitions to the jury

to abide by their oaths and remain impartial and fair while all the evidence was

presented. Our review of the record leads us to conclude that the trial court’s

5
According to the record, these two items were present only on April 22, 1996, the
day the trial resumed after its recess.

11
handling of the matter was not erroneous. We cannot say as a matter of law that

the jury was unduly influenced by the wreath or the sign.

E. Finally, Defendants contend that the district court erroneously admitted

evidence that referred to the Oklahoma City bombing. We review the

admissibility of evidence for an abuse of discretion because evidentiary rulings

are committed to the discretion of the trial court. Cartier v. Jackson, 59 F.3d

1046, 1048 (10th Cir. 1995); United States v. Davis, 40 F.3d 1069, 1073 (10th

Cir. 1994), cert. denied, 514 U.S. 1029, 1088 (1995)). The primary statement in

question was made by Mr. Lampley upon his arrest. A government witness, FBI

Agent Mr. Rayburn Collins, testified to the content of this statement at trial.

When asked upon his arrest if he agreed with the Oklahoma City bombing, Mr.

Lampley replied that he did not agree with the target. Defendants assert that this

statement was unfairly prejudicial and had no probative value under a Federal

Rule of Evidence 403 analysis, and thus denied them a fair trial. The government

argues that the statement is relevant and probative because “it shows certain

concerns or motivations that [co-defendant Mr. Lampley] had toward doing the

acts that he [allegedly] did.” R., Vol. XVI at 601. The district court overruled

Defendants’ objection, finding the statement not hearsay because it constituted an

admission by a party, and finding its probative value outweighed any prejudicial

12
effect. We conclude the district court did not abuse its discretion by admitting

this statement into evidence. In sum, we hold that the matters complained of

neither individually nor collectively denied Defendants’ right to a fair trial.

II.

Mr. Lampley claims he was denied his Sixth Amendment right to a public

trial. He argues that the courtroom was restricted on the first day of trial in a

manner that denied him his right to a public trial. Defendant did not make a

contemporaneous objection but raised the issue on the second day of trial. We

review the district court’s underlying factual findings for clear error and the

application of any legal principles de novo. Al-Smadi, 15 F.3d at 154. The right

to a public trial “has always been recognized as a safeguard against any attempt to

employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270

(1948). This court has determined that “[t]he denial of a defendant’s Sixth

Amendment right to a public trial requires some affirmative act by the trial court

meant to exclude persons from the courtroom.” Al-Smadi, 15 F.3d at 154.

The record does not support the conclusion that the trial court violated the

Al-Smadi rule. The chief activity on the first day of trial was the selection of the

jury. There is no evidence in the record that any person was denied entry to the

courtroom. There is some ambiguous evidence in the record which reflects that

13
spectators or press were in the courtroom on that first day: Prior to calling in the

jury panel, the trial judge stated, “And you folks who are back in the back, you

will have to make way for the jury.” R., Vol. XIV at 22. This statement confirms

that persons other than the jury, lawyers, defendants, judge, and court reporter

were present in the courtroom. The record does not reflect that these persons

were required to leave, and the defendant has not developed the record to the

contrary. From the record, it does not appear that anyone, including defense

counsel, was aware of anyone being excluded the first day of trial.

The only objection concerning a public trial was made by counsel for Mrs.

Lampley at the end of the second day of trial, April 2, 1996. Counsel stated, “It’s

my understanding that if you’re not in here by 8:30 or whenever you’re supposed

to be, that our United States Marshal has said you can’t enter this courtroom,

which in my opinion denies a public fair trial.” R., Vol. XV at 541. Co-

defendant Mr. Lampley joined in this objection. The trial judge responded: “I

don’t know anything about nobody being able to get in here. Somebody told me

earlier that nobody could leave, but I’ve seen spectators and reporters and others

leave here today.” Id. at 542. Additionally, the judge mentioned that an artist

was present first thing in the morning on April 2, and that eight artists and two

reporters were present later in the day. Further, if the trial judge had so ordered,

requiring people to be in their seats within a reasonable time is within his

14
managerial authority. See Bell v. Evatt, 72 F.3d 421, 433 (4th Cir. 1995)

(preventing ingress and egress to courtroom did not violate public trial right

where “trial judge was merely maintaining order in his courtroom and ensuring a

non-disruptive atmosphere”), cert. denied, ___U.S.___, 116 S. Ct. 2533 (1996);

United States v. Clark, 18 F.3d 1337, 1340-41 (6th Cir.) (avowing that the degree

of security provided at trial is within sound discretion of trial judge), cert. denied,

513 U.S. 852 (1994); see also United States v. Collins, 109 F.3d 1413, 1418 (9th

Cir. 1997) (noting “trial court ‘has discretion to use shackles or other security

measures when circumstances dictate’”) (citation omitted), petition for cert. filed

(U.S. June 25, 1997) (No. 97-5002); United States v. Brazel, 102 F.3d 1120,

1155-56 (11th Cir. 1997) (requiring identification from all persons entering

courtroom did not deny defendant’s right to public trial), petition for cert. filed,

(U.S. June 11, 1997) (No. 97-5730); (U.S. June 18, 1997) (No. 96-9447); (U.S.

Aug. 14, 1997) (No. 97-5754).

Mr. Lampley proffered no evidence in the record to contradict the judge’s

observations and implicit findings. He only proffered on appeal an anonymous

newspaper article included as an appendix to his appellate brief. We conclude

that this is insufficient on our own motion to remand for further development of

the record when no attempt was made to develop the issue before the trial court.

The trial judge concluded that there was no closure of the trial. We hold that this

15
finding is not clearly erroneous, and, therefore, do not reach the issue of whether

the Sixth Amendment was violated.

III.

Defendants Mr. Lampley and Mr. Baird contend that the evidence is

insufficient under Bailey v. United States, ___U.S.___, 116 S. Ct. 501 (1995), to

support their convictions beyond a reasonable doubt for use or carrying of a

firearm during and in relation to the conspiracy. To sustain a conviction under 18

U.S.C. § 924(c)(1), the government must prove three elements: (1) the defendant

committed the underlying crime; (2) the defendant “used” or “carried” a weapon;

and (3) the use or carriage of the weapon was “during and in relation to” the

conspiracy. United States v. Richardson, 86 F.3d 1537, 1546 (10th Cir.) (quoting

United States v. Nicholson, 983 F.2d 983, 990 (10th Cir. 1993)), cert. denied,

___U.S.___, 117 S. Ct. 588 (1996). We review the sufficiency of the evidence de

novo, viewing the evidence and the inferences therefrom in a light most favorable

to the government, to determine if a reasonable jury could find beyond a

reasonable doubt that the defendant was guilty. United States v. Voss, 82 F.3d

1521, 1524-25 (10th Cir.), cert. denied, ___U.S.___, 117 S. Ct. 226 (1996).

Neither Mr. Lampley nor Mr. Baird challenges the sufficiency of evidence

for his conviction of the underlying crime of violence. They also do not contest

16
that the conspiracy charged in this case fits the definition of a crime of violence;

the construction of an explosive device inherently involves a substantial risk that

physical force will be used against the person or property of another. 6 The

government argues the evidence is sufficient to show Defendants “carried” a

firearm “during and in relation to” the conspiracy. 7 In Bailey, the Supreme Court

distinguished the “use” prong of section 924(c)(1) from the “carry” prong. The

Court, holding that a section 924(c)(1) conviction for “use” requires the defendant

to “actively employ[] the firearm during and in relation to the predicate crime,”

did not define the “carry” prong but advised that “use” of a firearm does not

subsume the “carry” prong. Bailey, 116 S. Ct. at 508-09. Additionally, we have

noted that Bailey suggested that “neither storage nor possession of a gun, without

more, satisfies the ‘carry’ prong.” United States v. Spring, 80 F.3d 1450, 1464

(10th Cir.), cert. denied, ___U.S.___, 117 S. Ct. 385 (1996); see Bailey, 116 S.

Ct. at 509.

To satisfy the “carry” prong, the government must prove the defendant (1)

possessed a firearm through the exercise of dominion and control, and (2)

6
A conspiracy may function as the predicate crime for a section 924(c)(1)
conviction. United States v. Abreu, 962 F.2d 1425, 1431 (10th Cir. 1992) (a 21 U.S.C.
§ 846 conspiracy), aff’d on remand, 997 F.2d 825 (10th Cir. 1993), cert. denied, 512 U.S.
1239 (1994). Section 924(c)(1) does not restrict predicate crimes to substantive crimes.
7
We do not address the issue of “use” because the government concedes the
evidence is not sufficient to meet the Bailey standard for either Mr. Lampley or Mr.
Baird.

17
transported or moved a firearm “during and in relation to” the predicate offense.

See Richardson, 86 F.3d at 1548; Spring, 80 F.3d at 1465. Defendants do not

dispute that they physically carried a firearm while the conspiracy was ongoing. 8

The issue is whether Mr. Lampley and Mr. Baird carried a firearm “during and in

relation to” the conspiracy pursuant to section 924(c)(1). The government must

prove that each “defendant availed himself of the weapon and that the weapon

‘played an integral role’ in the [underlying] offense.” Richardson, 86 F.3d at

1548 (quoting Nicholson, 983 F.2d at 990). Essentially, we must determine

whether the evidence in the record is sufficient, as to both Mr. Lampley and Mr.

Baird, to establish a nexus between the carriage of the gun and the underlying

crime of conspiracy. Where, as here, the conspiracy never resulted in an

underlying substantive crime, 9 we are faced with a difficult task. Mere carrying

8
The record shows that Mr. Lampley purchased four firearms, three SKS rifles and
a .22 rifle, on August 20 and 22, 1995. He transported those firearms back to his
residence. Mr. Lampley carried one SKS rifle during target practice on the informant’s
property in late August 1995. He also carried a firearm, in August 1995, out of his home
to his yard where he pointed it at a plane overhead.

The record also confirms that Mr. Baird carried and held two firearms, a .38
caliber revolver and a .30 caliber carbine, during a conversation with the informant on
November 10, 1995. Mr. Baird physically transported the revolver in a holster from his
trailer to the location of the conversation outside. His fingerprints were on his firearms.
9
In many of our cases, the underlying predicate crime for a conviction under
section 924(c)(1) was a drug conspiracy. See United States v. Arias-Santos, 120 F.3d
271, 1997 WL 452254 (10th Cir. 1997) (convicted of conspiracy to possess with intent to
distribute cocaine); Abreu, 962 F.2d at 1431 (convicted of conspiracy to distribute
cocaine). The defendants convicted in these drug conspiracy cases were also convicted of

18
of the gun temporally to the conspiracy is not sufficient to meet the “during and

in relation to” element. See id. at 1549. Some further nexus must be shown, such

as an overt act of planning for, preparation for, or agreement to the conspiracy.

Mr. Lampley claims that he purchased the firearms for his self-defense in

response to the FBI’s notification of a death threat against him from the Texas

Constitutional Militia. He argues that he only purchased the guns in order to

protect himself against the death threat, one that he believed came from Jonathan

Bernstein and the Anti-Defamation League, because the local sheriff did not have

the resources to protect him. The record indicates that Mr. Lampley did purchase

the firearms with the intent to arm himself and those around him, that he

transported those weapons back to his residence, that he “went on a march” to do

“some target practice” with an SKS rifle (R., Vol. XVII at 1130), that he pointed

a weapon at a plane flying over his residence, and that he loaned one of his guns

to the informant so the informant would be armed. The government argues that

these activities constitute overt acts of planning and preparation “during and in

the underlying substantive offenses, perhaps making it easier to demonstrate a nexus
between the use or carriage of a firearm and the conspiracy. See Arios-Santos, 1997 WL
452254 at *4; Abreu, 962 F.2d 1430-32; see also United States v. Washington,
___F.3d___, 1997 WL 614568 (6th Cir. 1997) (convicted of conspiracy to distribute
crack cocaine and possession with intent to distribute crack cocaine); United States v.
Jackson, 65 F.3d 631, 633-34 (7th Cir. 1995) (defendant Jackson convicted of conspiracy
to distribute cocaine and cocaine possession, manufacturing, and distribution charges),
rev’d in part sub nom. United States v. Lamb, 82 F.3d 420 (7th Cir. 1996) (reversing
convictions for co-defendants under Bailey).

19
relation to” the conspiracy. More than one reasonable inference may be drawn

from these activities relating to Mr. Lampley’s firearms. 10 One reasonable

inference is that Mr. Lampley purchased and utilized the firearms to plan and

prepare for the strike force that would carry out the detonation of an explosive

device. A jury, therefore, could reasonably infer from the collective facts in the

record that a nexus existed between the underlying conspiracy and Mr. Lampley’s

carriage of the firearm.

Mr. Baird contends that he only expressed an intent to use his firearms in

the future, thereby not meeting the Bailey standard, 11 and that he did not carry the

guns “during and in relation to” the conspiracy. A review of the record discloses

that on November 10, 1995, Mr. Baird had a discussion with the informant on Mr.

Lampley’s property. Mr. Baird had both of his weapons with him at this time.

During the discussion, Mr. Baird displayed at least one weapon to the informant

and demonstrated that he had taped together three 15-round clips of ammunition

for easier and more effective use of his .30 caliber carbine. He explained to the

informant how he would eliminate any threats and quickly kill many people with

the forty-five rounds of ammunition. The government submits that this evidence

is sufficient to show the weapon was an integral part of Mr. Baird’s activities--to

10
We conclude that Mr. Lampley’s pointing a gun at a plane flying overhead is not
an overt act committed “during and in relation to” the conspiracy.
11
See supra note 7.

20
prepare the strike force necessary to deploy an explosive destructive

device--“during and in relation to” the conspiracy. Collectively, this record

evidence allows the jury to reasonably infer that a nexus existed between the

underlying conspiracy and Mr. Baird’s carriage of firearms. Taking the evidence

and inferences therefrom in a light most favorable to the government, we hold

that a reasonable jury could find beyond a reasonable doubt that both Mr.

Lampley and Mr. Baird carried a firearm “during and in relation to” the

conspiracy.

IV.

Mr. Lampley also contends that the evidence is insufficient to support the

jury verdict on the charge of solicitation to commit a violent crime. Title 18

U.S.C. § 372 makes it unlawful to conspire to induce any officer 12 of the United

States to engage in conduct constituting a felony. We review the sufficiency of

the evidence de novo, viewing the evidence and the inferences therefrom in a light

most favorable to the government, to determine if a reasonable juror could find

beyond a reasonable doubt that the defendant was guilty. Voss, 82 F.3d at 1524-

25. Defendant testified that he was solicited and entrapped by the informant. Our

There is no dispute that the informant qualifies as an officer because he was
12

employed by the United States to gain the confidence of the co-conspirators in this case.
See 18 U.S.C.A. § 372, n. 16.

21
review of the record indicates that the government presented testimony of the

informant and another co-conspirator, Mr. Larry Crow, 13 and a tape recording to

support the charge of solicitation. According to the record, Mr. Lampley inquired

if he could count on the informant’s participation and asked the informant to be

responsible for the actual “blowing up” or detonation of explosives. R., Vol.

XVII at 1081-83; Vol. XX at 1764-65. We conclude that this evidence is more

than sufficient to sustain a conviction because the jury could reasonably conclude

beyond a reasonable doubt that Mr. Lampley solicited the informant.

V.

Mr. Lampley further argues that the district court erroneously denied his

motion for judgment of acquittal based on entrapment. We review the district

court’s denial of a motion for judgment of acquittal de novo, viewing all the

evidence and drawing all reasonable inferences in a light most favorable to the

government. United States v. Young, 954 F.2d 614, 616 (10th Cir. 1992).

The defense of entrapment prohibits law enforcement conduct which

implants a criminal design in an innocent person’s mind and induces that person

to commit a crime he is otherwise not predisposed to commit. See Jacobsen v.

13
Mr. Crow was originally indicted along with Mr. and Mrs. Lampley and Mr.
Baird. At the time of this trial, Mr. Crow was awaiting acceptance of his plea to a lesser
charge of misprision of felony and a separate sentencing hearing.

22
United States, 503 U.S. 540, 548 (1992) (citing Sorrells v. United States, 287 U.S.

435, 441 (1932)). The inquiry in an entrapment defense has two parts: (1) the

lawfulness of the government’s conduct, and (2) the defendant’s predisposition to

engage in the criminal activity. See United States v. Russell, 411 U.S. 423, 435-

36 (1973); Sherman v. United States, 356 U.S. 369, 372, 376-78 (1958). Mr.

Lampley only challenges the sufficiency of evidence of his predisposition,

independent of the government’s actions, to violate the law by conspiring to build

and possess an explosive device. In making a determination on predisposition,

this court focuses on the defendant’s propensities to commit the offense; whether

the defendant was an “unwary innocent” or an “unwary criminal.” Sherman, 356

U.S. at 372; see United States v. Fadel, 844 F.2d 1425, 1433 (10th Cir. 1988).

The question of entrapment generally is one for determination by the jury. 14

See Mathews v. United States, 485 U.S. 58, 63 (1988). This court has determined

that “the factfinder is traditionally in the better position to evaluate conflicting

evidence and determine credibility”; and, therefore, conflicting evidence as to a

defendant’s predisposition precludes a finding of entrapment as a matter of law.

United States v. Madrigal, 43 F.3d 1367, 1370 (10th Cir. 1994), cert. denied, 514

U.S. 1089 (1995). Entrapment as a matter of law exists only when there is

14
The defense of entrapment was argued to the jury, and the jury was instructed on
the law of entrapment. The defendant does not object to the content of those instructions.

23
undisputed evidence “‘which shows conclusively and unmistakably that an

otherwise innocent person was induced to commit the act.’” Id. at 1369 (citation

omitted) (quoting United States v. Gurule, 522 F.2d 20, 23 (10th Cir. 1975), cert.

denied, 425 U.S. 976 (1976)).

The evidence in the record is insufficient to meet the high standard for

entrapment as a matter of law; there is no such undisputed evidence in this case.

The defense of entrapment was a heavily contested issue during Mr. Lampley’s

trial. Defendant argued that (1) the government “manufactured” the 18 U.S.C.

§ 924(c) firearm violation “by inspiring, inciting, persuading, and luring him to

purchase firearms”; (2) the government inspired him and induced him to conspire

with others to produce an explosive device; and (3) he never solicited the

informant, but assuming arguendo that he did, he was induced to solicit the

informant to commit a crime of violence. Appellant’s Brief at 28-32. The

government presented conflicting evidence that (1) Defendant engaged in

activities relating to the construction of an explosive device without the

informant’s knowledge and before the informant was solicited by Defendant to

participate in the conspiracy; (2) Defendant solicited the informant to help carry

out the conspiracy to build and possess an explosive device; and (3) Defendant

carried guns during and in relation to the conspiracy without inspiration from the

government. Consequently, we cannot say that Mr. Lampley was entrapped as a

24
matter of law. The evidence presented in the record is sufficient to support the

jury verdict on these facts.

VI.

Mrs. Lampley challenges the sufficiency of the evidence to support the

jury’s verdict that she was guilty beyond a reasonable doubt of conspiracy.

Again, we review the sufficiency of the evidence de novo, viewing the evidence

and inferences therefrom in a light most favorable to the government, to

determine if a reasonable juror could find beyond a reasonable doubt that the

defendant was guilty. Voss, 82 F.3d at 1524-25. This court has recognized “that

the conspiracy doctrine is inherently subject to abuse and that the government

frequently uses conspiracy to cast a wide net that captures many players.”

Richardson, 86 F.3d at 1546 (quoting United States v. Evans, 970 F.2d 663, 668

(10th Cir. 1992), cert. denied, 507 U.S. 922 (1993)). To obtain a conviction for

conspiracy, the government must prove that (1) there was an agreement to violate

the law; (2) the defendant knew the essential objectives of the conspiracy; (3) the

defendant knowingly and voluntarily took part in the conspiracy; and (4) the co-

conspirators were interdependent. Id. However, the secrecy inherent in the

nature of a conspiracy “often requires that elements of the crime be established by

25
circumstantial evidence.” Id. (quoting United States v. Andrews, 585 F.2d 961,

964 (10th Cir. 1978)).

Defendant testified that she had little knowledge of the conspiracy and that

her knowledge alone was insufficient to satisfy the requirements of conspiracy.

She denied that she participated in the conspiracy and submitted that she was

arrested, indicted, and convicted merely because of her relationship to Mr.

Lampley. A review of the record shows that the government presented conflicting

evidence. The government informant testified that Defendant knew the objectives

of the conspiracy when she participated in a discussion with Mr. Lampley and the

informant on September 30, 1995, concerning the Department of Human Services

as a potential bombing target. This testimony and a tape recording revealed that

Mrs. Lampley suggested it was necessary to call in a bomb threat before

detonation in order to save the lives of children in the building. She stated that it

was essential the clock was accurate to ensure this warning would save lives. The

informant also testified, and a tape recording confirmed, that on November 8,

1995, Mr. Lampley said his wife knew everything and had a right to know if she

was going to risk her life. Additionally, the informant testified that on November

7, 1995, Mrs. Lampley helped “cook” ammonium nitrate in her oven to remove its

moisture and prepare it as an explosive. R., Vol. XVII at 1143-44; Vol. XIX at

1532-34. The record reflects that the temperature in the oven was 150 degrees, as

26
indicated on a thermometer held by Mrs. Lampley and displayed to the informant.

There is also some record evidence that Mrs. Lampley made a photocopy of a

recipe for an explosive device and handed it to the informant. Finally, pursuant to

a search warrant, law enforcement officers seized evidence in plain view from the

Lampleys’ trailer and church building. According to the record, this evidence

consisted of the following: A recipe for “cookies” on the table in the trailer

where Mr. and Mrs. Lampley slept, which turned out to be a recipe for C-4, an

explosive substance; the Anarchists Cookbook in the same trailer on the unmade

bed Defendant testified she had slept in the previous night; and a shopping list for

fertilizer and nitromethane, ingredients for an explosive device, on the table in the

same trailer. Although more than one reasonable inference can be drawn from

these facts, a jury could reasonably infer that Mrs. Lampley had knowledge of the

objectives and knowingly acted in furtherance of the conspiracy. We conclude

that, viewed collectively and in a light most favorable to the government, the

record evidence and inferences therefrom are sufficient to support a reasonable

jury finding beyond a reasonable doubt that Mrs. Lampley was guilty of

conspiracy.

VII.

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 Defendants Mr. Lampley and Mr. Baird argue that the district court erred in

denying a motion to dismiss because their right to a speedy trial was violated

pursuant to the 1974 Speedy Trial Act (the Act), codified at 18 U.S.C. §§ 3161-

3174. We review the district court’s denial of a motion to dismiss for violation of

the Act for an abuse of discretion, and review the district court’s compliance with

the legal requirements of the Act de novo. United States v. Earls, 42 F.3d 1321,

1323-24 (10th Cir. 1994), cert. denied, 514 U.S. 1085 (1995); United States v.

Occhipinti, 998 F.2d 791, 796 (10th Cir. 1993).

The issue here turns on the calculation of the days excludable from the

seventy-day time limitation provision of the Speedy Trial Act. This provision,

section 3161(c)(1), requires that a criminal trial shall commence “within 70 days

of the latest of a defendant’s indictment, information, or appearance, barring

periods of excludable delay.” Henderson v. United States, 476 U.S. 321, 326

(1986) (citing United States v. Rojas-Contreras, 474 U.S. 231 (1985)). The Act

provides that certain periods of time may be excluded from the computation as

allowable delay. Section 3161(h)(1)(F) states that “[a]ny period of delay resulting

from other proceedings concerning the defendant, including but not limited to . . .

delay resulting from any pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such motion,” shall

be excluded from computing the proper commencement date for trial. This means

28
that any delay attributable to the filing and resolution of Defendants’ pretrial

motions is excluded. More importantly, the Act excludes from computation any

reasonable period of delay attributable to other co-defendants, absent severance.

18 U.S.C. § 3161(h)(7); see United States v. Tranakos, 911 F.2d 1422, 1426 (10th

Cir. 1990).

There were a total of 128 days from the indictment on November 15, 1995,

the latest of the indictment, information or appearance, to the commencement of

the trial on April 1, 1996. The government’s calculations result in forty-one

countable days from the date of indictment to the date the trial began. Our own

examination of the record, after excluding each defendant’s motions and co-

defendants’ properly attributable motions, reveals fifty-eight countable days from

the November 15, 1995 indictment to the date the trial began on April 1, 1996.

Either calculation is well within the seventy-day time limit of the Act. Moreover,

Defendants do not challenge the issue of excludable days. We conclude that the

district court properly denied Defendants’ motion to dismiss.

VIII.

Mr. Baird claims that the district court erred because it did not dismiss

Count IV of the indictment, the 18 U.S.C. § 924(c) charge, for prosecutorial

vindictiveness. Mr. Baird argues that by seeking a superseding indictment

29
containing the additional charge, the government exhibited vindictive behavior

and attempted to punish him for his refusal to plead and for exercising his right to

a jury trial. We review the district court’s factual findings for clear error and the

legal principles which guide the court de novo. United States v. Raymer, 941

F.2d 1031, 1039 (10th Cir. 1991). To establish a claim of prosecutorial

vindictiveness, the defendant must prove either (1) actual vindictiveness, or (2) a

realistic likelihood of vindictiveness which will give rise to a presumption of

vindictiveness. See United States v. Goodwin, 457 U.S. 368, 376, 380-81, 384 &

n.19 (1982); United States v. Wall, 37 F.3d 1443, 1447 (10th Cir. 1994); Raymer,

941 F.2d at 1040. If the defendant meets this burden, the prosecution then must

“justify its decision with legitimate, articulable, objective reasons.” Raymer, 941

F.2d at 1040 (citations omitted).

“When a defendant exercises constitutional or statutory rights in the course

of criminal proceedings, the government may not punish him for such exercise

without violating due process guaranteed by the federal Constitution.” Id.; see

Goodwin, 457 U.S. at 372; Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).

The inquiry is “whether, ‘as a practical matter, there is a realistic or reasonable

likelihood of prosecutorial conduct that would not have occurred but for hostility

or [a] punitive animus towards the defendant because he exercised his specific

legal rights.’” Raymer, 941 F.2d at 1042 (quoting United States v. Gallegos-

30
Curiel, 681 F.2d 1164, 1169 (9th Cir. 1982)). However, the Supreme Court has

generally rejected the presumption of prosecutorial vindictiveness in the pretrial

context. See Goodwin, 457 U.S. at 381-84; Bordenkircher; 434 U.S. at 363-64.

The Supreme Court’s conclusions are premised on the realities of the criminal

justice system: “[T]he guilty plea and the often concomitant plea bargain are

important components of this country’s criminal justice system.” Bordenkircher,

434 U.S. at 361-62 (quoting Blackledge v. Allison, 431 U.S. 63, 71 (1977)). “[I]n

the ‘give-and-take’ of plea bargaining, there is no such element of punishment or

retaliation so long as the accused is free to accept or reject the prosecution’s

offer.” Id. at 363. The Court has cautioned that “so long as the prosecutor has

probable cause to believe that the accused committed an offense defined by

statute, the decision whether or not to prosecute, and what charge to file or bring

before a grand jury, generally rests entirely in his discretion.” Id. at 364 (footnote

omitted).

The record does not support a claim of either actual vindictiveness or the

realistic likelihood of vindictiveness that translates to a presumption of vindictive

behavior. According to the record, the government notified Mr. Baird of its

intention to add a superseding indictment pursuant to 18 U.S.C. § 924(c)(1)

during the November 28 and 29, 1995 detention hearing, and also in a letter to

him in December 1995. The plea negotiations, which took place sometime during

31
the last week of December 1995 and the first week of January 1996, included the

inherent offers and rejections of pleas as well as discussions of possible

sentencing if Defendant pled guilty or was found guilty at trial. The record also

indicates that some evidence supporting the section 924(c)(1) charge against Mr.

Baird was not reviewed by the government until after the November 15, 1995

indictment had been returned and, also, was not provided to the government until

January 5, 1996. The district court’s determination that a presumption of

vindictive prosecution was unfounded is not clearly erroneous. Given the

Supreme Court’s precedent in the pretrial setting, the facts in this case prove

neither actual vindictiveness nor a reasonable likelihood of vindictiveness. The

district court properly declined to dismiss the superseding indictment based upon

prosecutorial vindictiveness.

IX.

Finally, Defendants Mr. Lampley and Mrs. Lampley challenge, pro se, the

original jurisdiction of the federal district court to prosecute crimes committed

within the States. Their principal argument is that the States are sovereign and

the federal government is not authorized to prosecute crimes committed within

their borders. The Supremacy Clause, the Civil War, the decisions of the

Supreme Court, and acts of Congress make it clear that so long as there is a

32
constitutionally authorized federal nexus, the federal government is free to act

anywhere within the United States. See U.S. Const. art. VI., cl. 2; 18 U.S.C.

§ 3231; Abbate v. United States, 359 U.S. 187, 192-94 (1959); Moore v. Illinois,

55 U.S. (14 How.) 13, 20 (1852); United States v. Hudson, 11 U.S. (7 Cranch) 32,

33-34 (1812).

To the extent that Defendants’ pro se briefs can be read to raise a nexus

based jurisdictional issue under United States v. Lopez, 514 U.S. 549 (1995), the

indictment and the record clearly establish the allegation of interstate commerce.

We affirm the district court with respect to all issues raised by all

Defendants in their respective cases.

AFFIRMED.

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