Six months later, Reichel was still screaming about the loss—or deliberate withholding—of the documents. He’s a big man, passionate about justice, and he gets worked up: “Who is going to believe they fucking misplaced that shit? I mean, seriously! And then, after he’s convicted nine years later you say, ‘Oh, here they are.’ Do they get that much deference?”
He may soon find out. On July 30, Reichel filed a 28-page motion in federal court in Sacramento asking U.S. District Court Judge Morrison C. England Jr. to order the government to explain itself. The U.S. Attorney’s Office and the FBI would be required to detail how and why the evidence went missing. The motion also asks the judge to “grant such further relief as the Court deems appropriate.” Maybe someone will be punished. Maybe more transparency can be introduced.
Under terms of his current plea agreement, McDavid, now 37, is not allowed to sue. He wrote in an e-mail, the day of the filing, “Some agents of the government—of the people—withheld documents that could have helped my defense. Someone is responsible, and there needs to be accountability. Withholding discovery is not unique to my case. If I can do something [with this motion] to aid others, then I want to.”
“Every time the government is caught hiding exculpatory evidence it adds to the pressure for them to become more open, transparent, and law abiding,” said attorney Stephen Downs, who has studied terror prosecutions in the U.S. since 9/11. “If this motion results in holding the government accountable for violating their disclosure obligations I think it might have a significant impact.”
Reichel had reason to believe Judge England would be receptive to such a motion. Six months earlier, England, who is not given to great displays of emotion in court, loudly proclaimed his anger that prosecutors had failed to disclose the letters previously.
“This is huge!” he barked. “I want to know what happened.… Especially when I’m the one that was in charge of this trial…and I had to rule as to whether or not this entrapment defense would be permitted…. And I sentenced this person to an inordinate amount of time when I shouldn’t have done so. So am I a little upset right now? Yes, I am!”
McDavid’s case was one of hundreds of FBI investigations into homegrown terrorism, eco-sabotage, and Islamist extremism that grew out of a post-9/11 counterterrorism policy that critics have termed “preemptory prosecution.” These operations use paid informants to direct an individual or a group of individuals identified for their political or religious beliefs in a plot of terrorism. But the plots, critics say, are often ginned up by the FBI and never would have taken shape as conspiracies, let alone terrorist events, without the government’s involvement. Many legal experts say the FBI has repeatedly crossed the line into entrapment, as McDavid claimed: Anna had strung him along with the suggestion of romance if he would get serious about planning ecoterrorism “actions.”
England would have been aware, in January, of the additional problem of prosecutorial misconduct. Alex Kozinski, then–chief judge of the U.S. Court of Appeals for of the Ninth Circuit (England’s circuit) had decried a wave of misdeeds, writing in 2013, “There is an epidemic of Brady violations abroad in the land. Only judges can stop it.” (The Brady v. Maryland case established that prosecutors are required to provide to the defense any exculpatory evidence.) One—highly publicized—such example included prosecutors’ withholding of exculpatory evidence in the 2008 corruption case against Sen. Ted Stevens of Alaska, whose conviction was later vacated. “Overall the Feds have a very bad reputation for turning over exculpatory information,” says Downs, noting the 2003 Detroit Sleeper Cell case, in which the prosecutor was himself prosecuted for hiding evidence.
During the extraordinary January hearing, McDavid stood in his orange jumpsuit with his prison face on—blank, not displaying any emotion. Skull shaved, his red-orange beard thick and his body sculpted by years of yoga in a six-by-eight-foot cell, he steeled himself for disappointment. He’d endured the prosecution’s mockery at his 2007 trial on charges of conspiracy to blow up a dam, a U.S. Forest Service lab that developed GMO trees, and other targets. “The defendant has said there was a romantic relationship. He has provided no facts of that,” one of the U.S. attorneys said—when the facts were in the government’s possession.
Reichel was just about coming out of his skin during the trial, but other than filing a Freedom of Information Act request there wasn’t much he could do. His 2007 request came back “No documents found.” Yet here were Assistant U.S. Attorney André Espinosa and John Vincent, Criminal Division chief, U.S. Attorney’s Office for the Eastern District of California—from the same office that had put McDavid away nine years ago—working up a sweat, explaining that all the newly produced evidence could be a violation under Brady. Espinosa and Vincent told the judge that the best idea was to let McDavid plead out and go home. Forthwith. That day.
“I know he’s not necessarily a choirboy,” England said, “but he doesn’t deserve to have to go through this either.” Then he banged the gavel. Case closed.
McDavid didn’t turn to look at his family as he left the courtroom. He wasn’t going to show any emotion until he was Out. The. Door.
“This was just about the most clear-cut case of entrapment you’re ever going to see,” said attorney Ben Rosenfeld, who handled the January habeas hearing along with Mark Vermeulen. Reichel added, “If I [had] had these documents, I could have won that case with my brain tied behind my back.”
Downs and Kathy Manley, in their May 2014 study Inventing Terrorists: The Lawfare of Preemptive Prosecution, published by civil liberties organizations Project SALAM and the National Coalition to Protect Civil Freedoms, found that 94.2 percent of all U.S. terror prosecutions from 2001 to 2010 involved defendants whose plots were wholly or partially manufactured by the FBI. “Most of the people convicted of terrorism related crimes posed no danger to the U.S. and were entrapped by a preventive strategy,” they write. The plots often rely on their targets’ need for money, food, apartments, cars. Or, in McDavid’s case, love.
Eric McDavid grew up a military brat not knowing very much about his country. His parents, George and Eileen, were both radar techs in the Air Force, and the family lived in Illinois, Mississippi, and Sacramento, California, before settling in the woods outside Foresthill, a remote ridgetop village in the Sierra Nevada. Behind the modern and meticulously kept house in which McDavid spent his adolescent years, there’s a large deck with a view of miles upon miles of pine-covered mountains, but he says he wasn’t aware of any great ecological consciousness developing during his youth. McDavid played football and got average grades at Casa Roble Fundamental High School in nearby Orangevale.
At a Methodist summer camp he attended every year as a teen, McDavid became interested in community and the social critique needed to build it. He felt a kinship among the kids, and when he wasn’t there he found that he craved this feeling. During the school year he would become acutely aware of the “masks” that he and everyone adopted: social cliques, religion, economic status. He sought out people who shared his attitudes, and at a 2003 protest in San Francisco against the looming invasion of Iraq, the first political event he attended, he thought he’d found a quarter million of them. He perceived a community he hadn’t been with since summer camp almost a decade prior. He scooped up every bit of political literature he could find there, and soon began training in de-escalation methods so he could be useful at protests. His parents gave him a copy of Michael Moore’s book Dude, Where’s My Country? It was, he said, “like a smorgasbord for my mind. How do I perpetuate this? How do I nourish this scenario to keep it happening? Because this is something I haven’t had since childhood, and I want more.”
The following summer, McDavid began volunteering for Food Not Bombs, a multi-city network that feeds the homeless and indigent. In August 2004, he struck out on a road trip, hitchhiking to Des Moines, Iowa, for a small anarchist convergence called CrimethInc. (a play on “thoughtcrime,” George Orwell’s term from 1984).
His first day there, McDavid met Zach Jenson, a 19-year-old from Seattle with no history of violence who lived off food stamps and Dumpster diving. They jumped into a car to pick up Jenson’s friend at a truck stop. She said her name was Anna and she was 18. She had hot-pink hair and a camo skirt riding halfway up her thighs, and told them she’d hitched rides from truck drivers all the way from Florida. Who the hell is this? McDavid breathed.
Days after the attacks of 9/11, beleaguered FBI Director Robert Mueller, under pressure from the White House, issued a memo calling for “forward-leaning—preventative—prosecutions.” Quickly, a huge expansion of surveillance, profiling, and stings took shape, often involving paid informants. Downs worked on the case of Albany, New York, imam Yassin Aref, who was convicted in 2007 of material support for terror as a result of a sting operation. He later wrote in the Washington Report on Middle East Affairs that this new investigative approach was a spin-off of a statement then–Vice President Dick Cheney made to author Ron Suskind: “If there’s a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response.” Suskind called his book The One Percent Doctrine, and that’s how the policy came to be known.
In terms of domestic counterintelligence, that meant that if the person deemed a person of interest had not yet come up with a terrorist plot, the FBI would provide it. This strategy is now behind nearly every terror prosecution that pops up: Most of the suspects are poor and marginalized Muslims or political dissidents. Some are mentally ill. They are typically known and sometimes outspoken figures in their community. People who commit acts of terrorism, such as the Tsernaev brothers, who bombed the Boston Marathon in 2013, or Timothy McVeigh, whose truck bomb killed 168 people in the Oklahoma City federal building in 1995, succeed because they operate in secret. Suspects “caught” before their alleged plan comes to fruition face, as a result of post-9/11 laws like the USA Patriot Act, lifetimes in prison and usually gain leniency in exchange for a guilty plea that seems to vindicate the investigation. The plots are most often FBI-concocted. (The FBI declined multiple requests for comment on the McDavid case and the use of paid informants in anti-terror prosecutions.)
The famous cases get press handles, like the “Miami Seven,” arrested in a 2006 plot to blow up FBI offices and Chicago’s Willis Tower (formerly Sears Tower). Time said they were most likely “wannabes,” parading around their Miami neighborhood in military uniforms and turbans telling anyone who would listen that they were “committed to Allah.” When approached by an FBI informant who claimed to represent al-Qaida, they swore fealty in exchange for matériel, attack plans, and a requested $50,000 in cash. And then they were busted.
The names quickly pile up. Craig Monteilh, paid $177,000 to infiltrate a mosque in Orange County, California. Bradley Crowder and David McKay, arrested after being encouraged by paid FBI informant Brandon Darby to make Molotov cocktails at the 2008 Republican National Convention. Portland’s “Christmas Tree Bomber,” 19 and troubled, set up for a 30-year sentence. The “Cleveland Four,” homeless young men whom the FBI, through an informant, provided with jobs, homes, money, drugs, and alcohol. Supposedly there was a plot to blow up a bridge in 2012. Christopher Cornell, who the Department of Justice says converted to Islam and plotted “to attack the U.S. Capitol and kill government officials.” Shannon Maureen Conley, 19, who wanted to become an ISIS bride and was arrested in April 2014.
In 2011, Mother Jones and the University of California, Berkeley, looked at domestic terrorism cases involving FBI stings between 2001 and 2010 and found only three high-profile stings that weren’t led by the FBI. The rest were instances of the FBI foiling its own entrapment plots; the government arresting people on material support for terrorism charges that essentially criminalize conduct such as charitable giving and management, free speech, free association, peacemaking, and social hospitality; or inflation of minor or technical acts, such as inaccurate statements to governmental officials or on government forms, characterized as perpetrated in the furtherance of a terrorist plot.
Judges have pushed back. The “Newburgh Four,” broke and struggling African American Muslim men from upstate New York, were enticed with offers of up to $250,000 to blow up a synagogue in the Bronx. U.S. District Court Judge Colleen McMahon rebuffed government claims that the men were terrorists, writing in a post-sentencing hearing, “I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition.”
Others on the bench felt differently. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit seemed to affirm the government’s preemptory approach in its 2012 decision upholding McDavid’s conviction, writing: “There was ample evidence that the group could have committed a crime without Anna, even if it would have taken more time or thriftiness.”
Anna told McDavid she was trained as a “street medic” who could deliver first aid to protesters injured by cops, and that she had been to protests at the 2003 Free Trade Area of the Americas meeting in Miami and the 2004 G8 economic summit in Sea Island, Georgia, among others. In fact she had been recruited out of community college to infiltrate the FTAA meeting after a sheriff’s deputy in her class, impressed by a paper she presented on protesters, gave her name to the FBI. The bureau sent her out to infiltrate the loose nationwide tangle of protesters who had threatened to shut down the World Trade Organization meeting in Seattle in 1999 and were now showing up at every international conference, such as those held by the World Bank, the International Monetary Fund, and the biotech industry and at the 2004 Republican and Democratic national conventions in Los Angeles and New York, where several thousand protesters would be arrested.
In 2004, John Lewis, deputy assistant director of the FBI’s Counterterrorism Division, declared that anarchist-affiliated environmental networks such as the Animal Liberation Front and the Earth Liberation Front were now the bureau’s “highest domestic terrorism investigative priority.” ELF had claimed responsibility for torching a luxury ski lodge under construction in Vail, Colorado, in 1998 and an arson at a condo complex near La Jolla, California, in 2003, that caused more than $60 million in damages.
Anna was on what McDavid considered an “authentic path,” and he was smitten.
The half-dozen or so other women at the Iowa CrimethInc. also had their hearts set on McDavid: He was buff from years of work on construction crews and philosophical. He liked to cook and was extraordinarily polite. An informant is taught to fit in with the crowd she is infiltrating, and Anna joined the young women in zeroing in on McDavid, who describes his 25-year-old self in Des Moines as “incredibly naive.”
“Both of us said, ‘Oooh, I like the smiley one,’ “ said a woman who calls herself Atomic Lily, now 32. She attended the Des Moines CrimethInc. meeting with Jenny Esquivel, who later became McDavid’s girlfriend.
“At CrimethInc., there were kids who would do anything to prove they were radical,” said Lily. “They meant it so hard. Eric was not one of those people.”
That first night, Anna crawled into bed beside McDavid and then hung around him throughout the gathering. That they did not have sex, as both later confirmed, only set the hook.
Anna testified that she was instructed to target young anarchist men. To McDavid’s legal team, this violated his right to freedom of assembly under the First Amendment, established by court precedents. “You can’t target people for their political views, their sex, or their age,” Reichel said.
It didn’t take long for Anna to figure out McDavid was not the fighter she was looking for. Together they attended CrimethInc. “skillshare” sessions that addressed subjects from co-op child care to secure communications. She asked him whether he’d “ever really done anything,” as she put it. He said no; he was a newbie looking for information.
“That’s when I felt her pull back from me,” said McDavid. “I realized that’s where it was at for her—sexually and in terms of the movement.”
Anna testified that she gave McDavid’s name to her FBI handlers but added she thought he was “inconsequential,” a neophyte “not of interest to the FBI.”
But McDavid was very interested in her. He had found not just the community he had been looking for, but the woman he wanted to share it with. After CrimethInc., he and Jenson joined Anna and hundreds of thousands of protesters at the 2004 Republican National Convention in New York. When she failed to cajole the two of them into civil disobedience, she demonstrated her commitment by getting herself arrested. McDavid chivalrously went to offer jail support, only to be confused to find that she was never booked and never turned up at the jail where other protesters were being held—the FBI had her sprung. Heading home afterward, he handwrote her a love letter full of misspellings and rebus-like wordplay:
“It’s frustrating feeling all the endorphins shoot off in my head when ever I think of u expessialy not knowing if it’s just inflatuation, a crush or whatever box this language has for this emotion,” he wrote. “I do know that my stomach gets tight as fuck & I get shortness of breath with a nice shot of adrenalien when memories of u rise up…. It hurts not to get sentimental & shit, because these feelings are so strong & I hope my forwardness w/expressing all this doesn’t scare the shit outta u.…”
The letter and other pieces of correspondence turned up in England’s court in January. Most were emails from McDavid, and though the uncovered documents lacked corresponding responses from Anna, it is clear from the context that she had replied.
Anna later told McDavid she “threw away” the August 2014 handwritten letter because it could link them. In fact she gave it to the FBI. She artfully brushed off the gushy emotions, but McDavid said she invited “D,” as she called him, to join her at a big protest in June 2005 against the Organization of American States in Fort Lauderdale, Florida. McDavid didn’t make it, but he and Jenson were in Philadelphia later in June to protest BIO 2005, an annual biotechnology conference. There was a 25th-anniversary event for Food Not Bombs at the same time, also in Philadelphia, where they met Lauren Weiner, an art student who worked at a local anarchist bookstore. Anna turned up, and Weiner invited them all to crash at her place.
This was McDavid’s moment: He hadn’t been alone with Anna in almost a year. He pulled her out onto a balcony and told her his feelings had only deepened.
Anna testified that this was a whole new McDavid. Since the previous summer, she said, he had become “a radical activist who seemed to espouse very firm beliefs in very extremist viewpoints.”
McDavid shakes his head at this. He did not testify at his trial but says now that what had changed was his ability to express his feelings.
After their encounter in Philly, McDavid sent her an email trying to gauge her intentions, and Anna replied the same day, the only reply to McDavid that has been released: “I think you and I could be great, but we have a LOTS of little kinks to work out.”
A relieved McDavid shot back a rambling email saying, “B’n great, I think that’s an understatement.” The two finalized plans to spend time talking at an August CrimethInc. gathering in Bloomington, Indiana, and he wanted to find time alone with her, adding in the same message, “i’d like 2 look N2 do’n some independently from the scene N the future 2, i think it’d throw a different light on the subject….”
His warm hopes now kindled into a flame, McDavid says he and Anna stayed in regular communication, though only sporadic and brief correspondence has been made public. In those he calls her “cheeka” and sends her “big hugs.” On Oct. 4, 2005, the known communications between them, as well as some between Anna and Weiner, were sent to an FBI Behavioral Analysis Unit, which would coach Anna to say just the right things to keep McDavid interested.
“She knew that he was in love with her, and we [talked] about it,” said Weiner in an interview in March. “Girls talk about that kind of stuff.”
Anna was evidently frustrated, though, that McDavid wasn’t interested in action. She wanted to be plotting, and in November 2005, after the FBI told her it wanted to “get something going,” according to her court testimony, she bought plane tickets for herself and Weiner to visit McDavid in Foresthill. She wanted Jenson to come too; the plan was for them to all really talk. McDavid wanted to see her but was not in a political mood. Reluctantly, he agreed to have everyone come to the house.
The weekend before Thanksgiving, Anna was finally able to achieve what she and her FBI handlers had been working toward for nearly a year and a half. McDavid’s parents were away on a trip, and out at the fire pit on the house’s open deck, surrounded by towering cedar and fir trees, McDavid brought up an interview of radical environmentalist Derrick Jensen he’d read. Anna parlayed Jensen’s critique of human civilization as ecologically unsustainable into a discussion of what she characterized as “targets”—cell phone towers, dams, gas stations. She was wearing a body recorder, but it didn’t work half the time, so she kept needing to ask the others to repeat themselves.
McDavid was recorded asking Anna if she could get recipes for C4-style putty bombs, but he insists that the only one making any kind of plan was Anna. “There was that herding-cats sense, the entire thing,” he says today.
Was any of this going to get him a girlfriend? McDavid still wasn’t sure. On a pizza run into town, he at long last found himself alone with Anna. “I hit her up: ‘So what do you see happening with this relationship between you and I?’ And she basically, like, ran the FBI’s statement: ‘I want to handle business first. And then we can move into an intimate relationship.’ “
A few days after the conversation by the fire pit, the alleged co-conspirators split up to spend the holidays with their families. All agreed to get together again in the new year and pass the winter in a mountain cabin. When, in December, Anna emailed McDavid a recipe for a bomb, relayed in a code they’d worked out, McDavid flinched, and asked her to stop.
In January 2006, the FBI provided Anna with a car, and she drove Weiner and Jenson from Philadelphia to California, then picked up McDavid. She’d rented a cabin in Dutch Flat, just outside the Tahoe National Forest. The FBI had wired it for video and audio surveillance. Anna bought all the food and whatever supplies they needed with money she said she’d earned working as a stripper. She handed out pocket money. None of the others had a job.
“It was kind of like, OK, there’s food, there’s shelter, and there’s someone I’m romantically interested in,” says McDavid. So why not stay awhile?
As soon as they settled into the cabin, Anna went into manic control mode, screaming at everyone, hustling them to write down their ideas for crimes they could commit together. The others wanted to hang out and smoke weed, not make bombs or anything else. But Anna dragged them to San Francisco to pick up equipment, and to potential targets like the massive Nimbus Dam on the American River. Seeing the huge wall of cement, 87 feet high and 135 feet thick at the base, the others laughed at Anna, telling her that trying to destroy it was, as McDavid said, “beyond ridiculous.” On Jan. 12, the four of them mixed on a hot plate some ingredients the FBI had provided for a flash-bang device—a harmless fake bomb whose manufacture would demonstrate to a jury her targets’ criminal intent. When the effort failed, Anna had a screaming tantrum and marched out of the house to the motor home from which her handlers were monitoring the surveillance efforts and told them she was quitting. No matter, the agents said. They had enough.
The next morning they were arrested in the parking lot of a Kmart. McDavid, Jenson, and Weiner had tried to appease their meal ticket earlier in the morning by saying they were willing try again with the bomb recipe if she wanted. They drove down to Kmart to purchase bleach and other supplies, and on the way back to the car the FBI nabbed them.
At trial, Jenson and Weiner testified against McDavid in return for plea deals that let them walk. Both say that turning state’s evidence made it impossible for them to tell the truth and that their responses during interrogation made prosecutors very angry until the answers began to conform.
“Anna fueled everything,” Weiner says now. Prosecutors, in a Kafkaesque twist, asked her who the leader was. “ ‘Because she was an informant, Anna no longer counts,’ “ she says they told her. “ ‘So, out of the three of you [Weiner, McDavid, and Jenson].’ “
In 2012, in McDavid’s habeas petition, Jenson recanted his testimony. “I felt the government informant Anna had entrapped all of us, including Eric, into committing the crime charged. It was clear to me that Anna was the leader of the conspiracy and not Eric,” he wrote. “I knew I couldn’t testify to this or the government would rescind my plea agreement.”
In interviews, several of the jurors agreed, saying they felt McDavid had been entrapped but that Judge England’s instructions had left them no choice but to convict. (The appeals court refused to consider the claim of faulty instructions.)
“We felt like, ‘Who’s running this conspiracy here?’ said juror Diane Bennett. “It seemed like [Anna] was in charge.”
“There were things [in the government’s case] that some of us just didn’t really believe,” Bennett said.
In the absence of the letters, testimony concerning the relationship between McDavid and Anna was quashed. He was found guilty of a single charge of conspiracy. Until 9/11, such a conviction drew a maximum five-year sentence, but terrorism enhancements increased it to almost 20.
Late in the afternoon of Jan. 8, McDavid popped open the doors of the Robert T. Matsui Federal Courthouse in Sacramento and faced the bright, chilly winter day as a free man. Now he allowed himself to smile—nine years’ worth of big, red-bearded smile. He ran to his weeping family and embraced Esquivel, and then they all walked quickly to his parents’ car. “I haven’t even made his bed!” said his mother, dabbing her eyes.
Executive Assistant U.S. Attorney Philip Ferrari, speaking for the Sacramento office, balked at the term “preemptive prosecution,” saying, “We’re not encouraging a crime to happen. When we use an informant, we’re gathering information. We want to get evidence to prosecute him so he doesn’t do those crimes in the future.”
Though admitting his office had made a mistake in not producing the McDavid-Anna correspondence, he maintained McDavid was guilty of the crime he had been charged with.
“It’s not as if these documents indicate that Mr. McDavid did not do what he was accused of doing, what he was convicted of doing, what he admitted to doing when he entered his guilty plea,” said Ferrari.
This is a bit of theater: The settlement McDavid’s attorneys negotiated with the U.S. Attorney’s office required him to plead guilty or risk a new trial.
Esquivel, who worked for years with Sacramento Prisoner Support to win McDavid’s release, wrote in an email, “Eric was targeted for his politics—the words ‘anarchist’ or ‘anarchism’ appear no less than 25 times in the 15-page document that was his criminal complaint. The government was pursuing Eric and his friends because [of their] views and ideas.”
Asked if his son’s release represented the triumph of justice, George McDavid’s smile disappeared. “No,” he said. “It should never have happened in the first place.”
Eric McDavid has been reconnecting with friends and family since his release, and hopes to teach yoga and sociology. He earned his paralegal certification in prison, which he hopes will help him pay the bills while in school. Anna has at least twice legally changed her name. Her whereabouts are unknown.
See the original version of the story on TakePart.com right here.