Close Up Of Gavel Resting On Its Sounding Block

The federal appeals court based in Denver has turned away an appeal from a man serving nearly 20 years for his attempted bombing of a Pueblo synagogue who had challenged a portion of his sentence on First Amendment grounds.

The U.S. Court of Appeals for the 10th Circuit did not actually reach the question of whether to invalidate the requirement that Richard Holzer, upon his eventual release from prison, avoid possession of any symbols that are supportive of white supremacy or antisemitism. Holzer had admitted to promoting white supremacist ideology in the leadup to his arrest.

A three-judge appellate panel determined on Monday that Holzer gave up his right, as part of his guilty plea, to challenge that post-release condition.

Senior Judge Mary Beck Briscoe, writing for the panel, acknowledged that Holzer could appeal his sentence if it exceeded "the maximum penalty provided" under the law. Given that Holzer's sentence included a duration in custody, as well as special conditions for after his release, the notion of a maximum penalty "cannot, as Holzer suggests, reasonably be construed to refer to both quantities of time (i.e., months, years) and to limitations on the type of actions a defendant can take while on supervised release," Briscoe wrote.

Undercover law enforcement agents communicated with Holzer over several weeks in late 2019, posing as people with an interest in white supremacist or Nazi ideology. Holzer talked about wanting to perpetrate violence against Temple Emanuel, a synagogue in Pueblo. By the end of October, Holzer was actively making plans to bomb the faith house.

When the agents asked Holzer if he would call off the bombing if there were people in the temple, Holzer reportedly responded, “No, dude, are you kidding me? It's a Jew. I have got no mercy for Jews.”

In November 2019, federal prosecutors had charged Holzer with three offenses. Holzer, who was 27 at the time, ultimately pleaded guilty to two of them: intentionally attempting to obstruct people in the free exercise of their religion through the use of force, and attempting to damage and destroy the temple with explosives. 

Holzer acknowledged in the plea agreement he signed that he had used social media to "promote white supremacy ideology" and violence motivated by race or religion.

In February 2021, U.S. District Court Judge Raymond P. Moore imposed a sentence of 235 months in prison, to be followed by 15 years of supervised release. Moore laid out 11 stipulations Holzer would have to follow on supervised release beyond the standard conditions, only one of which Holzer challenged on appeal. Special Condition Nine directed Holzer to not "knowingly acquire, possess or otherwise use" anything that supports or associates with antisemitism or white supremacy.

The parties had gone back and forth on the wording of Special Condition Nine. The government originally proposed barring Holzer from possessing material "primarily associated" with extremist views, but Holzer complained that it was vague and gave too much power to probation officials to determine what fell in that category. He countered with a proposal that would have prohibited his possession of material that promotes "racial or ethnically-motivated violence."

Moore rejected both options and adopted his own wording. The judge also listed certain types of materials that would be contraband, including Ku Klux Klan symbolism, the book Mein Kampf and other Nazi memorabilia. Holzer took issue with three specific types of paraphernalia that Moore called out: Thor's hammer, the Celtic cross and six particular numbers — all of which have importance to white supremacists.

At the time of sentencing, Holzer's attorney argued that Thor's hammer played into Holzer's Ásatrú faith, and outlawing that symbol could infringe on his own religious exercise.

"I get it. He has a First Amendment right, regardless of what he is charged with," Moore cut in. "But the irony is remarkable that where it's being suggested that I'm doing something that is trying to inhibit the practice of his religion, when he is trying to blow up a synagogue and preclude Jews from the practice of theirs. It's remarkable."

Moore insisted that he was not intending to prevent Holzer from following his beliefs. He did not want Holzer to use his faith as a "cloak" to associate with white supremacists, which is the behavior Moore intended to halt.

"Every day we have cases, 'You shall not associate with gang members.' All right. What is it?" Moore explained by way of example. "Does he meet them at church? Do they revoke him for that? No. He is hanging out in the bar with them? Well, now it's getting worse. There are always going to be questions of some small degree of interpretation."

On appeal to the 10th Circuit, Holzer reiterated that Special Condition Nine infringed on his religious rights, comparing Thor's hammer to, ironically, the Star of David for the Jewish faith. He also argued that the prohibition would restrict other, more benign forms of expression.

"As relates to modern culture and media, the condition bans Mr. Holzer from owning an Avengers action film, a Marvel comic book featuring Thor, or a CD from the band 'Celtic Cross'," wrote Assistant Federal Public Defender Grant R. Smith.

During oral arguments before the 10th Circuit, the parties divided their time between speaking about Special Condition Nine itself and whether the plea agreement even allowed Holzer to challenge it. Judge Carolyn B. McHugh likened the plea to a contract that only allowed for appeals of the sentence length, not the supervisory conditions. She said it is "absurd" to believe that Special Condition Nine represented an absolute prohibition on any of those symbols, when Moore specifically linked their possession to specific and hateful ideology.

If Holzer holds a religious ceremony, added Judge Robert E. Bacharach, "and he has a Thor's hammer, do you really think that Judge Moore was saying, 'No, a probation officer should come and disrupt that ceremony and take away that hammer?' As Judge McHugh said, that's clearly contrary to what Judge Moore said."

Assistant U.S. Attorney Paul Farley agreed that Moore had tried to focus Special Condition Nine on the circumstances of Holzer's case.

"To the extent the defendant is concerned about can he have an Avengers DVD, I guess I'm here to say I'm not sure I see the problem there," Farley said.

The panel did not express complete comfort with Special Condition Nine, with Briscoe observing Moore had written that his itemized list of prohibited paraphernalia was "without limitation." Nevertheless, the panel did not reach the legality of the stipulation under the First Amendment because Holzer had waived his right to appeal it, and he had not shown that it would be a miscarriage of justice to uphold that waiver.

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