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A 5th U.S. Circuit Court of Appeals panel has affirmed the convictions of two Republic of Texas separatists on charges of threatening to use a weapon of mass destruction. The court on July 31 upheld 24-year prison sentences for Johnie Wise and Jack Abbott Grebe Jr. The two were sentenced in federal district court in Brownsville, Tex., on Feb. 5, 1999, for allegedly threatening federal officials. FBI agents said the two planned to shoot their targets with cactus thorns carrying deadly viruses and fired from modified Bic lighters. The FBI became involved in the case in 1998 when a computer consultant, John L. Cain of Harlingen, told federal agents that he had been approached by members of the separatist group Republic of Texas. He said the group wanted him to send threatening e-mail messages to President Bill Clinton, U.S. Attorney General Janet Reno, and other federal officials, according to the 5th Circuit’s opinion. The FBI later videotaped the defendants directing Cain to send the computer messages to the officials, the opinion said. Cain told agents that the defendants also discussed converting a simple cigarette lighter into a dart gun designed to fire a cactus thorn coated with deadly toxins, the opinion said. No biological toxins were found when agents raided the suspects’ homes. Wise and Grebe were acquitted on the conspiracy charge but were convicted on two counts of knowingly and intentionally threatening to use a weapon of mass destruction. The role of Cain, the government informer, was a basic point of contention in the appeal. The defendants said that Cain was authorized by the FBI to send the e-mails; therefore, it was legal to send the messages. “Under Fifth Circuit jurisprudence, an aiding and abetting conviction for a completed substantive offense may stand even if the principal is a government agent with no guilty intent and therefore no substantive crime actually was committed,” wrote the opinion’s author, Western District of Louisiana Chief Judge F.A. Little Jr., sitting by designation. Circuit judges Jacques L. Wiener Jr. and Carl E. Stewart joined Little in the opinion. The panel in USA v. Wise and Grebe turned away the other challenges, including complaints of entrapment and spoliation. Keith Uhles, a partner in the Brownsville office of Royston, Rayzor, Vickery & Williams, was court-appointed to represent Wise. He also argued the case at the 5th Circuit. “This isn’t the end of the road,” he says. “The opinion has some areas that are contradictory on their face, and they also have some very strong contradictions to Supreme Court precedent.” “For instance, the opinion goes back and forth on whether Cain was an agent of the government or not. And they make a clear statement that they’re rejecting a 7th Circuit opinion on the entrapment argument,” he adds. The 5th Circuit’s opinion also is contrary to recent Supreme Court rulings on the Commerce Clause, he says. He says he hasn’t decided whether to seek a rehearing or to take the case to the U.S. Supreme Court. Grebe’s attorney, Daniel Herink of Brownsville’s Rodriguez, Colvin & Chaney, says the 5th Circuit’s opinion is disappointing. “For these two fellows to have gotten [24] years for merely sending a letter, albeit a threatening one, with absolutely no evidence whatsoever of any intent to carry out the crime … is just grossly unfair,” he says. He also says he is disappointed that the court did not find a prosecutor’s mention of the Oklahoma City bombing — despite an agreement not to refer to that crime — to be reversible error. “I guess the real rule is that you can say anything in final argument and not be subject to reversal,” he says. Assistant U.S. Attorney Tony Roberts of McAllen, who argued the government’s case at the 5th Circuit, referred questions to a government spokeswoman, who did not respond by press time.

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