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Eric McDavid Released from Prison after 9 years! FBI withheld information for his defense


By COLIN MOYNIHAN
JAN. 8, 2015
New York Times

A man serving a 19-year prison sentence for environmental terrorism won an early release from prison on Thursday, with a California judge approving a settlement between defense lawyers and prosecutors. The defense said that the authorities had withheld evidence that could have bolstered his case at trial.

The man, Eric McDavid, 37, was convicted in 2007 of conspiring to bomb several targets near Sacramento as part of a radical environmental campaign. The government said he plotted attacks against government and commercial facilities that he believed were harming the environment, including cellphone towers and the Nimbus Dam in California. Mr. McDavid, who visited some sites and at one point tried to make homemade explosives, has served nine years in prison and will be released immediately, according to his lawyers.

His prosecution had become well known in environmental circles partly because of its star witness: a pink-haired informant who began covertly working for the F.B.I. at age 17 after writing a community college paper about infiltrating political protest groups.

Eric McDavid in an undated photo. He was convicted in 2007 of conspiring to bomb several government and commercial targets that he believed were harmful to the environment. Credit McDavid Family


Mr. McDavid's lawyers had asked that his conviction be vacated, citing the withheld information, including a request by officials for a polygraph examination of the informant, code-named Anna, and various messages between her and Mr. McDavid.

Federal prosecutors disputed the value of the material, writing that "none of the omitted items were even remotely exculpatory." But in a settlement approved Thursday, both sides agreed to Mr. McDavid's immediate release "to avoid the expenses and risks of further litigation and to advance the interests of justice."
Under the agreement, Judge Morrison C. England Jr. of Federal District Court in Sacramento accepted a guilty plea by Mr. McDavid to a general charge of conspiracy, and then sentenced him to time served. Judge England also granted Mr. McDavid's motion to vacate his original conviction and sentence of 235 months, allowing for his release. Mr. McDavid waived any future civil claims.
"Today we corrected one of the most egregious injustices I have ever encountered in my legal career, if you consider being released after nine years of wrongful incarceration justice," said one of Mr. McDavid's lawyers, Ben Rosenfeld.

A spokeswoman for the United States attorney's office in Sacramento did not immediately comment on the agreement.

Mr. McDavid's conviction came as the F.B.I. carried out a sweeping investigation of arson attacks by a group called the Earth Liberation Front against a Vail ski resort, an S.U.V. dealership and a university botany lab, among other sites. Federal authorities said that Anna, who testified that Mr. McDavid had requested explosives recipes and once threatened her life, had helped thwart a dangerous plot to blow up targets like the United States Forest Service Institute of Forest Genetics in Placerville, Calif., and cellphone towers in California.
"McDavid's homegrown brand of eco-terrorism is just as dangerous and insidious as international terrorism," prosecutors wrote in a sentencing memorandum.

Defense lawyers contended that Anna was an unreliable witness who had entrapped Mr. McDavid, manipulating his romantic attachment to her and pushing him and two co-defendants to brew homemade explosives while providing them with food and a place to live.

"She fomented the alleged conspiracy, literally herding defendants together from around the country for meetings, badgering them to form a plan, and mocking and berating them when they showed disinterest," Mr. Rosenfeld and another lawyer, Mark R. Vermeulen, wrote last year, adding that the withheld material could have been used to challenge Anna's credibility or examine her relationship with Mr. McDavid.

By many measures Anna was an unlikely spy. She was assigned by the F.B.I. to attend the 2004 national political conventions in Boston and New York, a global trade summit in Georgia and anarchist gatherings in Iowa and Indiana. Anna provided information in a dozen different cases, the authorities said, and stayed in touch with Mr. McDavid. In 2005 she reported that he was planning a bombing campaign, and the F.B.I. increased its monitoring of him.

At the time of his arrest in early 2006, Mr. McDavid was living with Anna and two co-defendants in a cabin in Dutch Flat, Calif., which the F.B.I. had provided and fitted with surveillance equipment that recorded the group discussing reconnaissance trips and the possibility of causing accidental deaths.

The co-defendants, Lauren Weiner and Zachary Jenson, both pleaded guilty in 2006 and testified against Mr. McDavid. Mr. Jenson has since said that he felt pressured to conform to a narrative embraced by the government, an assertion that prosecutors rejected.

After Mr. McDavid's conviction, a Freedom of Information Act request yielded about 2,500 pages of substantially redacted F.B.I. reports connected to him. Defense lawyers said they thought those documents indicated the existence of material that should have been turned over at trial.

The undisclosed material included several emails or letters between Mr. McDavid and Anna that had been given to the agency's behavioral analysis unit for review and an F.B.I. document dated two months before Mr. McDavid's arrest, asking for a polygraph examination to determine Anna's "veracity" before "the expenditure of substantial efforts and money based on source's reporting." F.B.I. officials later said that examination ultimately did not take place.


Read more here: http://www.sacbee.com/news/local/article7251650.html

FORESTHILL

Eric McDavid was running late for his interview Wednesday, unavoidably delayed when a detective asked to chat with him after he stopped at the Placer County Sheriff's Office to register as an arsonist.

After nine years in federal custody, McDavid, 37, had been out of prison just six days and was still adjusting to life on the outside.

Later that day, he sat in his parents' home, a large rustic cabin tucked among tall pines overlooking a ridge outside Foresthill in the Placer foothills. Balding and gaunt, he sat on a leather couch, beside his mother and girlfriend, as the morning sun streamed in through large picture windows and logs burning in the fireplace warmed the room.

"It's surreal," McDavid said. "It took at least the first few days.

"I was waking up in the middle of the night just trying to figure out if it's real still. I mean, how many times at night I'd wake up like, ‘This is real. I'm not dreaming.'"

Until earlier this month, McDavid was scheduled to remain in prison another eight years -- until Feb. 10, 2023 -- following his 2007 conviction for conspiring to blow up and burn the Nimbus Dam, a U.S. Forest Service genetics lab and cellphone towers.

But in a twist described as unprecedented by the judge overseeing the case, McDavid won his release on Jan. 8 after agreeing to plead guilty to a lesser charge: a single count of conspiracy to attack a government facility that, had he made the same deal nine years earlier, would have cost him, at most, five years in prison. That guilty plea, which came with a promise by McDavid not to appeal or sue the government, resulted in his immediate release. His previous conviction and sentence were wiped out by an order of the court.

The dramatic shift followed a concession by authorities that information the defense had a legal right to acquire before McDavid's trial was not turned over as it should have been. Instead, thousands of pages were not produced until after his trial, with nearly 2,500 pages handed over in 2010 as his lawyers continued to fight his conviction.

It was not until November 2014 that the government produced the letter and series of emails between McDavid and an FBI informant that led to the deal that won him his release.

The U.S. attorney's office in Sacramento described the lapses as "inadvertent," and said they would have had no bearing on a jury's decision to convict McDavid nine years ago of conspiring to use explosives to destroy government property, a more serious charge that carried a 20-year maximum sentence.
"We agree that the recently produced documents should have been provided before trial in 2007, and that oversight was unfortunate," Benjamin Wagner, the U.S. attorney in Sacramento, told The Sacramento Bee last week. "But we don't agree that the documents would have changed the outcome at trial.

"The jury's verdict in this case was amply supported by the evidence. Mr. McDavid can scarcely dispute that, since he pleaded guilty (Jan. 8), under oath, admitting the same facts that were found by the trial jury."

The government settled for a reduced sentence, Wagner said, because prosecutors wanted to avoid the potential for years of further litigation and possibly a new trial.

"We believed that the right thing to do was to resolve the case now on the basis of the nine years Mr. McDavid had already served in prison," he said.
In an interview last week, McDavid was hesitant to discuss his guilty plea or certain aspects of the case, which has spawned international headlines and film proposals.

Despite his recent guilty plea, he was adamant that he and his two co-defendants were the victims of entrapment by a mysterious FBI informant known throughout the trial only as "Anna," and that any suggestions about attacking government facilities always came first from her.

"No, we were not going to blow anything up," McDavid said.

"Everybody keeps throwing up this thing about the Natomas dam and cellphone towers," he said, initially getting the name of the purported target incorrect. "The Natomas dam, the Nimbus Dam stuff, that was her idea. That was Anna's idea."

There is little debate that "Anna" was key to the government's case against McDavid and his two alleged co-conspirators, but the two sides disagree vehemently over whether the young woman entrapped the three by encouraging them to plot radical attacks against the government. McDavid's lawyer argued throughout the trial that McDavid, especially, was affected, because he had fallen for her romantically.

McDavid, who grew up in Orangevale before his parents moved to the foothills 14 years ago, had a typical American upbringing, his family said. His parents, George and Eileen, grew up on farms and met during stints in the Air Force.
McDavid, one of three children, played football at Casa Roble High School in Orangevale, worked as a house framer, and attended Sierra College before setting out to travel the country in 2004. His family testified during trial that he wanted to see what the rest of America looked like, and make acquaintances among people of his own generation.

During this period, he met his alleged co-conspirators, Lauren Weiner, then a 20-year-old art student in Philadelphia whose family lived in Pound Ridge, N.Y., and Zachary Jenson, a 20-year-old transient.

He also met "Anna," who was 18 at the time.

She had come to the attention of law enforcement as a 17-year-old community college student in 2003 in Florida, where she presented a class report on how she had dressed in "grunge" clothing to mingle with protesters at an international free-trade conference. A law enforcement official in the class was so impressed he asked for a copy of the report and turned it over to the FBI in Miami, according to trial testimony.

Soon, she was traveling the country as an informant with instructions to keep tabs on anarchists and other groups planning protests, she testified at McDavid's trial in 2007.

"Anna" testified that she met McDavid at an anarchist conference in Des Moines, Iowa, in 2004, and that in June 2005 he invited her into a conspiracy for a bombing campaign that he was plotting with Weiner and Jenson.

For the next year and a half, "Anna" popped in and out of the trio's lives, keeping contact by email and, when she was with them, helping the three with money for food, lodging and travel, according to testimony and court documents.

All the while, "Anna" was reporting back to her FBI handlers, and finally got the alleged conspirators to gather in a cabin in Dutch Flat that the FBI had equipped with cameras and microphones. The government contends it was there, in January 2006, that the trio plotted to blow up the dam, the lab and the cellphone towers, and that they unsuccessfully experimented with making explosives.

At the time, in the aftermath of 9/11, militant environmental and animal rights activists were considered among the nation's most dangerous domestic terror threats: The Animal Liberation Front was suspected of plotting against research labs. Radicals had set fire to SUV dealerships and attacked developments in forested areas.

McDavid and his alleged co-conspirators were not the only targets the FBI was tracking in the Sacramento region.

Four months after "Anna" first met McDavid and began reporting on him to the FBI in Philadelphia, agents in the bureau's field office in Sacramento began an investigation of Ryan Daniel Lewis, a 21-year-old Auburn resident, in connection with a series of arson attempts attributed to the Environmental Liberation Front, targeted by the FBI as a loosely knit eco-terrorist group.

Court documents show that agents believed Lewis and McDavid were friends, and that agents went to McDavid's parents' home on Feb. 24, 2005, to talk to McDavid, who was not there.

The government said in court papers that McDavid wrote in his diary that he left California in 2005 "after a friend told him the FBI wanted to talk to him about Ryan Lewis." He wrote that he found out from his father that the FBI had come looking for him and that his parents "contacted a lawyer who said I should find a nice, warm beach somewhere," according to the FBI.

His travels eventually brought him back again to California and to the Dutch Flat cabin, where relations between "Anna" and the three defendants began to sour, according to trial testimony.

McDavid said last week that he recalls with precision the last moments he spent with "Anna" before his arrest, when it dawned on him she was an informant, not the love of his life. That came on a crisp Friday morning, Jan. 13, 2006, in a Kmart parking lot in Auburn when the FBI decided the operation had gone on long enough.

"We just came out of the Kmart, and I'm around at the back of the car, plopped up on the trunk of the car, and she hopped into the front seat, the driver's seat," he said. "It was cold out, where it feels good, bright sun, clear skies, clear as a bell …

"And I look around, and I see Zach and Lauren starting to walk up, and right about as they start to get to the car I hear the locks click, the automatic locks on the door. And then I turn around and look in the rear-view mirror and she's on the cellphone. And I like, I wonder, ‘Who's she calling?'

"And right then there must have been around nine vehicles pull up screeching, doors opening before vehicles even stop. I got a Suburban about 15 yards off to my right, Ninja turtles jumping out, AR15s, everything.

"And I just go, ‘Oh, that's what that was.' "

McDavid, Weiner and Jenson were charged with conspiring to use explosives to destroy government property. Weiner and Jenson accepted plea bargains and agreed to testify against McDavid, who opted to fight the charges. Weiner served two weeks; Jenson got six months.

McDavid's supporters have maintained over the years that he was entrapped by "Anna's" promises of a sexual relationship if he acted on her suggestions, and insisted they knew of written evidence to back that up. McDavid's girlfriend, 34-year-old Jenny Esquivel, whom he met at the same Des Moines anarchist meeting where he met "Anna," remained close to him after his arrest and eventually became a sort of paralegal without portfolio, helping his lawyers write legal documents and file Freedom of Information Act requests.

But the documents they sought did not surface until Nov. 6, 2014, when Assistant U.S. Attorney André Espinosa provided a letter from McDavid to "Anna" and a series of emails between them to McDavid's appellate attorneys. For weeks afterward, the two sides sought a resolution to the issues raised by the delays in disclosing the material to McDavid's defense.

McDavid's lawyers contend the letter and emails prove that the government entrapped him, implying a future romance if he would agree to her suggestions for attacks on government properties.

"I think you and I could be great, but we have LOTS of little kinks to work out …," the informant wrote in a June 27, 2005, email to McDavid.

"I hope in Indiana we can spend more quality time together, and really chat about our life and our things. I think it will be better there -- more space, better atmosphere, less restrictive. I'm looking forward to it. :)"

The federal prosecutors maintain that producing the materials before trial would not have changed the outcome.

Still unresolved is the question of why the letter and emails between "Anna" and McDavid were not produced until November.

In U.S. District Court in Sacramento on Jan. 8, prosecutors told U.S. District Judge Morrison C. England Jr. that the documents had been in a file in the Sacramento FBI office. They provided no specifics about what led to that discovery, although federal officials said the two trial prosecutors had been interviewed and knew nothing about the documents.

The U.S. attorney at the time, McGregor Scott, who is now in private practice in Sacramento, said he learned of their existence when he read a story about the recent developments in The Bee.

"The first I learned of the existence of the letters was when I read of the court hearing…," Scott said. "From all outward appearances, which is all I have available to me at this point, the letters should have been provided (to the defense) as discovery.

"However, the mere existence of the letters does not undermine my confidence in the case that was brought or the conviction that was gained at the time. Irrespective of the letters, Mr. McDavid and his confederates developed an elaborate plan and took multiple steps to effectuate it."

Today, McDavid says he still is grappling with ideas rather than concrete plans for his future.

He hopes to complete an associate's degree he started at Sierra College, and muses about becoming a yoga instructor, a pursuit he took up in prison.
He says he picked up other valuable skills during his prison stint, which started at a federal facility in Victorville and ended in Terminal Island federal prison in San Pedro, three days shy of nine years. He acquired some knowledge of Spanish and Mandarin, learned how to repair bicycles and wheelchairs, was boss of the commissary, and spent time as a kitchen apprentice.

"I can bake," he said. "If you need bread for a thousand guys, or cakes or cookies or turnovers or doughnuts."

That doesn't make him resent any less what he said was a trumped-up case. His distrust of the government, he said, is only stronger than it was before he was arrested.

"Nobody could ever get me my nine years back," he said. "Nobody could do that. What was taken in those nine years, you can't get that back. That's impossible."