Affidavit in the Case of United States of America v. Christopher W. McIntosh

January 24, 2005

United States District Court
Western District of Washington at Seattle

United States of America,
Plaintiff,

v.

Christopher W. McIntosh,
Defendant,

Magistrate’s Docket No.
Case No. 05-27M

Complaint for Violation

Title 18, United States Code,
Section 844(i)

BEFORE John L. Weinberg, United States Magistrate Judge, United States Courthouse, 700 Stewart Street, Seattle Washington.

Count 1
(Arson)

On or about January 20, 2003, at Seattle, in the Western dDistrict of Washington, CHRISTOPHER W. McINTOSH maliciously damaged and attempted to damage and destroy by means of fire and explosive materials a McDonald’s restaurant at 222 5th Avenue North, Seattle, Washington used in interstate commerce.

All in violation of Title 18, United States Code, Section 844(i).

And the complainant states that this Complaint is based on the following information:

1. I am a Special Agent with the Federal Bureau of Investigations (FBI). I am assigned to the Domestic Terrorism Squad in the FBI’s Seattle Office. I have been employed as a special agent for approximately five years and currently am responsible for investigating cases involving crimes committed by groups known a the Earth Liberation Front (ELF) the Animal Liberation Front (ALF). This affidavit is based on my own investigation, as well as on information provided to me, and my revive of reports prepared by, other law enforcement personnel.

2. On January 20, 2003, at approximately 1:50 a.m., an off-duty Seattle Police Department (SPD) Officer reported a fire at the McDonald’s restaurant at 222 5th Avenue North, Seattle, Washington. The officer reported flames approximately twenty feet in the air, rising from the roof. The Seattle Fire Department (SFD) responded and extinguished the fire. Damage to the restaurant was estimated to be five thousand dollars ($5,000).

3. A witness was standing with friends in the parking lot located on the South side of the McDonalds’ restaurant at the time of the fire. The witness reported seeing flames rising from the roof of the restaurant. The witness reported that an individual appeared out of the middle of the flames and scurried down the McDonald’s roof-access ladder. The witness described this individual as a white male, approximately 15-22 years old, approximately 5’8″ tall with a thin build, weighting perhaps 150 pound, wearing a black or gray hooded jacket or sweatshirt with black pants, and carrying a black backpack over his shoulder.

4. SFD arson investigators who investigated the fire concluded that the fire had originated on the roof of the restaurant, and that it was the result of arson. SFD arson investigators determined that the fire was started by an improvised incendiary device. Investigators found a broken lock on a gate in the fence that secures access to the roof-access ladder on the South side of the restaurant and concluded that the arsonist gained access to the roof through this gate and ladder.

5. Investigators collected numerous items of evidence from the rooftop, including melted red plastic material that investigators concluded was the remnant of the fire bomb, and a fibrous herbaceous material wrapped in duct tape that investigators concluded was intended to be part of the fuse. Investigators also collected a sports-style gym bag that contained, among other items, a red plastic gas can containing a small amount of liquid, believed to be gasoline, a can of black spray paint, a hack-saw, and a pair of sunglasses with a case. Investigators concluded, based on the contents of the gym bag, that it likely had been left by the arsonist.

6. On January 20, 2003, at approximately 10:39 a.m., the Seattle arson tip line received a voicemail message. The message was transcribed as follows:

“There was an E-L-F-A-L-F hit at McDonald’s across from the Space Needle. There will be more. The fire was set on the ‘M.’ Four gallons of gas. There was a broken lock, not cut. Broken. There will be more. As long as mother earth is pillaged, raped, destroyed. As long as McDonald’s keeps hurting our furry brothers, there will be more. [Unintelligible] will be more.

7. I know that the ELF is a group that supposedly is dedicated to protecting the environment. I also know that the ALF supposedly is dedicated to advancing the cause of animal rights. Since 1996, ELF and ALF have claimed responsibility for numerous arsons that ostensibly were committed to further the causes of the environment and animal rights. Damage from those arsons has totaled tens of millions of dollars.

8. The McDonald’s restaurant located at 222, 5th Avenue North, Seattle, Washington is a few blocks from the Space Needle, a famous Seattle landmark. The voicemail message contained information that only a person involved in the arson would have known. For example, this particular McDonald’s has an “M” painted on the roof top that can be observed only from above. Moreover, crime scene investigators found that the lock that secured the roof-access ladder at the restaurant was indeed broken, rather than cut.

9. Investigators subsequently determined that the telephone call to the arson tip line had been placed from a payphone in downtown Seattle. After identifying the telephone from which the call had been placed, investigators collected two telephone books from the bank of payphones from which the telephone call to the arson tip line had been placed.

10. The FBI laboratory analyzed the evidence in this case. Although most of the evidence is clear of fingerprints or DNA, the laboratory has made a number of significant findings. Specifically, the laboratory found “Caucasian head hairs suitable for microscopic comparison purposes” on the sunglasses and sunglass case found in the gym bag recovered from the roof of McDonald’s. The FBI laboratory also found DNA suitable for comparison purposes on the sunglasses found in that bag. The FBI laboratory determined that this DNA came from more than one individual. It also determined that at least one of those persons was a male.

11. The FBI laboratory also has found a number of fingerprints in this case. First, although SPD previously had examined the can of black spray paint found in the gym bag on the roof of McDonald’s and had failed to locate any latent prints of comparison quality, the FBI laboratory conducted additional testing and found three latent fingerprints on the spray paint can. Second, the FBI found a number of latent prints on the telephone books recovered near the telephone from which the arson tip line call had been placed.

12. The FBI laboratory submitted the latent fingerprints found on the can of spray paint to the Automatic Fingerprint Identification System (AFIS) and determined that the fingerprints match the fingerprint record of CHRISTOPHRE WELLS McINTOSH, a Caucasian male born July 17, 1982. According to his NCIC record, McINTOSH is 5’10” tall and weighs 150 pounds. The FBI Laboratory compared McINTOSH’s fingerprint record with the latent prints recovered from the phone books, but with negative results.

13. According to arrest and other records, since 2000, McINTOSH, has been arrested in various states, including Oregon, California, Wisconsin, and Illinois. In particular, McIntosh was arrested in Portland, Oregon, on February 26, 2003 and March 5, 2003, approximately a month after the McDonald’s arson. (McINTOSH supplied the alias, David Lester McIntosh, McINTOSH’s brother’s name, and provided a date of birth of October 30, 1984, during these arrests). Officer James Stegmeyer of the Portland Police Department, who participated in the March 5, 2003 arrest, recalls that McINTOSH was wearing a black jacket and had a backpack.

14. On September 23, 2004, I interviewed McINTOSH’s parents, Ronald and Kathryn McIntosh in Maple Shade, New Jersey. I told his parents that I was investigating an assault that had taken place in Portland, Oregon, and asked McINTOSH’s parents to have McINTOSH contact me if they heard from him.

15. McINTOSH’s parents told me that McINTOSH was not a committed animal rights activist, but recalled that McINTOSH had become involved in causes, like animal rights, based upon that girls that he dated. McINTOSH’s parents confirmed that, when they last saw him the week before, McINTOSH had a black backpack and a grey hooded sweatshirt, and that McINTOSH often wore black clothing. McINTOSH’s parents knew that McINTOSH had been in Seattle, Washington, but could not recall the month or the year.

16. On October 2, 2004, McINTOSH was arrested in Arcata, California, for disorderly conduct and impersonating another person to avoid prosecution. (McINTOSH supplied the officers the alias, David Lester McIntosh, with a date of birth of October 30, 1984). Following his arrest, McINTOSH was held at the Humboldt County Detention Facility, in California. FBI agents subsequently obtained a search warrant from the United States District Court, Northern District of California, for blood, hair samples, and major case prints from McINTOSH, and, on October 6, 2004, executed that warrant at the Humboldt County Detention Facility.

17. The FBI laboratory has compared the evidence found at the sight of the arson with the samples taken from McINTOSH. It has determined that McINTOSH is “the major contributor” of the DNA found on the sunglasses recovered at the scene of the arson. It has determined that no conclusion can be made as to whether McINTOSH is the source of two hairs found at the scene. (The laboratory report notes that approximately 20 months passed between the crime and collection of known head hair samples from McINTOSH and that hair characteristics can change over time.) It has determined that McINTOSH is not the source of other hairs found at the scene.

18. After executing the warrant, agents told McINTOSH that they wished to interview him and advised McINTOSH of his Miranda rights. McINTOSH signed an advice of rights form and agreed to speak with the agents. The agents asked McINTOSH where he was in January 2003. McINTOSH told agents that he arrived in Seattle on Christmas Even of 2002 and that he had left Seattle in early March of 2003. McINTOSH further stated that he had signed in at a youth center located in Seattle and that he had done so using his brother’s name, David McIntosh.

19. I have reviewed records obtained pursuant to subpoena from a youth center in Seattle, Washington. Sign in logs for January 14, 15, 16, and 21, 2003, show that someone signed in on those dates using the name David McIntosh, David M., or just David, and, in each case, the date of birth October 30, 1984. I showed a staff member from the youth center a photograph of McINTOSH. The staff member confirmed that McINTOSH was the person who signed in under these names on these dates. The staff member also told me that McINTOSH had been dating an individual named Maria. The name Maria or Maria G appears next to McINTOSH’S alias on the logs for each of the four dates in January 2003.

20. On October 23, 2004, I received a phone call from an individual who identified himself as CHRISTOPHER McINTOSH. McINTOSH told me that he had learned that FBI Agents had visited his parent’s house. McINTOSH wanted to make it clear that he had not been involved in the Portland, Oregon, assault. I told McINTOSH that his fingerprints had been linked to the arson of a McDonald’s restaurant in Seattle, Washington. McINTOSH became quiet and offered no explanation as to why his fingerprints were found on evidence left at the crime scene. McINTOSH did state at one point that he did not know what I was talking about. I asked McINTOSH to tell me his side of the story. McINTOSH stated repeatedly that “this was a new development” and told me that he would have to get back to me on this. McINTOSH has not re-contacted me.

21. On November 19, 2004, another FBI Special Agent interviewed an ex-girlfriend of McINTOSH’s, who was incarcerated at the Coffee Creek Correctional Facility, Wilsonville, Oregon. She said that she had started dating McINTOSH approximately one month after the arson. She met McINTOSH while panhandling in Portland, Oregon, and lived with McINTOSH in various shelters. In February or March of 2003, McINTOSH asked her to travel with him to New York. During their two-week long trip to New York, McINTOSH told her that he intentionally had burned down a McDonald’s restaurant in Seattle, Washington. McINTOSH told her that he had started the fire in the restroom by accessing some wiring in a fan or electrical outlet.

22. On December 29, 2004, I interviewed McINTOSH’s former girlfriend a second time. She told me that she had recalled some additional details that she had not provided during her original interview. Most significantly, she recalled that the McDonald’s restaurant which McINTOSH claimed to have burned down was located next to the Space Needle in Seattle. She also recalled that McINTOSH wore black clothing, and that one article of McINTOSH’s clothing appeared to be burned.

23. I have talked with Captain David Pagan of the Seattle Fire Department’s Fire Investigation Unit about other fires or attempted fires at McDonald’s restaurants in the Seattle area. Captain Pagan has reviewed SFD’s records and has told me that the fire that occurred on January 20, 2003 at the McDonald’s restaurant by the Space Needle is the only known Seattle-area McDonald’s fire in recent years. I also have talked with an owner/operator of five McDonald’s restaurants in the Seattle area, and with the Security Manager for McDonald’s’ Seattle-area stores. Neither was aware of any fire at a Seattle McDonald’s other than the January 2003 fire at the restaurant located at 222 5th Avenue North, Seattle, Washington, or of any incident involving tampering with fans or electrical outlets in aMcDonald’s restroom.

24. On January 18, 2005, I interviewed Maria Gardner. Gardner identified McINTOSH as Gardner’s former boyfriend. Gardner stated that she dated McINTOSH in Seattle, Washington in January of 2003. Gardner stated that McINTOSH planned and committed the arson at the McDonald’s restaurant and admitted that Gardner, herself, had served as the lookout during the arson. Gardner stated that she was present when McINTOSH called the arson tip line. Gardner listened to the recording of that call and identified the voice as McINTOSH’s.

25. During the course of this investigation, I have investigated a number of other suspects other than McINTOSH, including some who have a history of targeting McDonald’s or other fast food restaurants, and some who were rumored to have been involved in the arson. DNA samples and fingerprint records from many of these suspects have been compared with evidence from this case, all with negative results. Based upon my investigation, I have ruled out each of the other persons whom I have investigated as a viable suspect in the case.

26. I am aware that McDonald’s is a national restaurant chain headquartered in Illinois that operates both company-owned and franchised stores throughout the United States. The McDonald’s store at 222 5th Avenue North, Seattle, Washington is owned by a franchisee who owns five Seattle-area stores. McDoanld’s has a national distribution system that supplies menu items to both company and franchised stores around the country. Franchisees in turn pay fees to the corporation. Because of its location near the Space Needle, the Experience Music Project, and Seattle Center, all of which are popular tourist destinations, many of the customers of the McDonald’s restaurant at 222 5th Avenue, North, Seattle, Washington are tourists, including, in many cases, tourists from other states and countries. As a result of these facts, the McDonald’s restaurant is a building used in interstate commerce.

27. Based on the foregoing, I submit that there is probable cause to believe that CHRISTOPHER W. McINTOSH has committed a violation of Title 18, United States Code, Section 844(i).

Ted R. Halla, Complainant
Federal Bureau of Investigation

Based on the Complaint sworn to before me, and subscribed in my presence, the Court hereby finds that there is probable cause to believe that the defendant committed the offense set forth in the Complaint.

DATED: this 24 day of January, 2005.

John L. Weinberg
United States Magistrate Judge

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