United States v. Clare Therese Grady

USCA11 Case: 20-14341 Date Filed: 11/22/2021 Page: 1 of 39

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14341

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLARE THERESE GRADY,

CARMEN TROTTA,

MARTHA HENNESSY,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:18-cr-00022-LGW-BWC-3

____________________

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2 Opinion of the Court 20-14341

Before BRANCH, GRANT, and ED CARNES, Circuit Judges.

BRANCH, Circuit Judge:

In the late-night hours of April 4, 2018, Clare Grady,

Martha Hennessy, Carmen Trotta, and several others associated

with the Plowshares movement 1 surreptitiously and illegally

entered the Naval Submarine Base Kings Bay in St. Marys,

Georgia. Once inside the Kings Bay naval base, the defendants

executed their plans to engage in religious protest of nuclear

weapons by engaging in what they refer to as “symbolic

disarmament.” These actions, however, were far more than

symbolic; in fact, they were incredibly destructive—spray painting

numerous anti-nuclear and religious messages on the sidewalk

and on monuments; pouring donated blood from the

movement’s members on the door of a building and the sidewalk;

hammering on a decommissioned missile display; placing crime

scene tape around the base; removing signage and part of a

monument; and cutting through wiring and fencing in order to

enter a highly secured area and display banners protesting nuclear

1 The Plowshares Movement is a “Roman Catholic protest and activism

group opposed to nuclear weapons.” The movement’s name comes from

the Bible verse, Isaiah 2:4, which provides: “He will judge between the

nations and will settle disputes for many peoples. They will beat their

swords into plowshares and their spears into pruning hooks. Nation will not

take up sword against nation, nor will they train for war anymore.”

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20-14341 Opinion of the Court 3

weapons. Base security ultimately apprehended the group

peacefully, and federal charges were brought against the involved

individuals. Grady, Hennessy, and Trotta proceeded to a jury

trial, and now appeal their respective convictions and sentences

for conspiracy, destruction of property on a naval installation,

depredation of government property, and trespass.

Jointly, the trio argue that (1) the district court erred in

denying their respective motions to dismiss the indictment under

the Religious Freedom and Restoration Act (“RFRA”), and (2) the

district court erred in holding them jointly and severally liable for

the full restitution amount.

Additionally, Hennessy and Trotta jointly argue that (3) the

district court abused its discretion when it denied their respective

requests for a guidelines reduction for acceptance of responsibility

under U.S.S.G. § 3E1.1.

Turning to their individual arguments, Hennessy argues

that (4) the district court abused its discretion in increasing her

offense level under U.S.S.G. § 2B1.1(b)(1)(C) when it treated the

total damages amount as the loss amount. And Grady argues that

the district court erred in (5) not giving her requested mistake-of-

fact jury instruction, and (6) failing to consider or address RFRA at

sentencing. After careful consideration and with the benefit of

oral argument, we affirm.

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4 Opinion of the Court 20-14341

I. Background

Naval Submarine Base Kings Bay is home to the only

strategic weapons facility on the Eastern Seaboard and houses

numerous submarines and critical assets. The Kings Bay naval

base is large, covering approximately 17,000 acres with 26 miles of

perimeter fencing and employing approximately 10,500 people as

part of the staff or crew. The facility is highly secured, with only

three authorized points of entry, which are manned at all times by

armed guards. The base area behind the perimeter fencing is not

open to the general public. Anyone who attempts to gain access

to the base other than through the three main gates is trespassing,

and guards are authorized to exercise deadly force against

unauthorized entry or trespassers if necessary.

Other higher security areas within the perimeter fencing of

the Kings Bay naval base are protected by additional barriers. For

instance, an area referred to as the “Limited Area” is separated

from other areas of the base by double lines of fencing and

concertina wire. 2 Written warnings that deadly force may be

used against intruders are posted along the fencing and an oral

announcement to that effect is played over a loudspeaker

2 Concertina wire is “an entanglement of coiled usually barbed wire that can

be . . . use[d] as an obstacle.” Concertina wire, Webster’s Third New

International Dictionary Unabridged (2005), https://unabridged.merriam-

webster.com/unabridged/concertina%20wire (last visited November 22,

2021).

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20-14341 Opinion of the Court 5

approximately every eight to nine minutes. In addition to

numerous buildings and other assets inside the base, there is a

static missile display that showcases several decommissioned

ballistic missiles.

And outside the gates of the naval base is a static submarine

display known as the Bancroft Memorial. Several times a year,

different groups request and receive permission from the Kings

Bay naval base’s Public Affairs Office to demonstrate or protest at

the Bancroft Memorial. For instance, the group Pax Christi holds

a candlelight vigil twice a year in protest of the operations on the

base. And another group demonstrates around the anniversary of

the Hiroshima and Nagasaki bombings.

In this case, however, the defendants did not request or

receive permission to protest at the Bancroft Memorial site or

anywhere else. Instead, after approximately two years of secret

planning, under the cover of darkness on April 4, 2018, Grady,

Hennessy, Trotta, and four other members of the Plowshares

Movement equipped with spray paint, bolt cutters, hammers,

blood, banners, crime scene tape, Go-Pro cameras, and other

tools cut a padlock on the perimeter fencing of the Kings Bay

naval base, opened a gate, and illegally entered the base. The

group intended to engage in symbolic disarmament as part of

their faith, which they profess requires them to “practice peaceful

activism and prevent nuclear war.” Once inside the Kings Bay

naval base, the seven individuals split into groups and proceeded

to different areas of the base, including the administration

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6 Opinion of the Court 20-14341

building, the static missile display, and the nuclear weapons

storage bunkers.

Grady and Hennessy went to the administration building

where they spray-painted numerous anti-nuclear and religious

messages on the sidewalk. They poured bottles of human blood

on the door of the building and sidewalk, and placed crime scene

tape around the building. They also taped an “indictment” 3 of the

3

The indictment stated as follows:

KINGS BAY PLOWSHARES (PLAINTIFF),

VS.

UNITED STATES OF AMERICA (DEFENDANT),

INDICTMENT

Today, through our nonviolent action, we, Kings Bay

Plowshares—indict the United States government, President

Donald Trump, Kings Bay Base Commander Brian Lepine,

the nuclear triad, and specifically the Trident nuclear

program.

WHEREAS, This program is an ongoing criminal

endeavor in violation of international treaty law binding on

the United States under the supremacy clause of the U.S.

Constitution (Article VI, Section 2): This Constitution, and

the Laws of the United States which shall be made in

Pursuance thereof; and all Treaties made, or which shall be

made, under the authority of the United States, shall be the

supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of

any State to the Contrary notwithstanding.

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20-14341 Opinion of the Court 7

WHEREAS, The United States is bound by the

United Nation’s Charter, ratified and signed in 1945. Its

preamble affirms that its purpose is to “save future

generations from the scourge of war.” It directs that “all

nations shall refrain from the use of force against another

nation.” Article II regards the threat to use nuclear weapons

as ongoing international criminal activity.

WHEREAS, The Nuremberg Principles, also

promulgated in 1945, primarily by the U.S., prohibit crimes

against peace, crimes against humanity, war crimes and

genocide. They render nuclear weapons systems prohibited,

illegal, and criminal under all circumstances and for any

reason.

WHEREAS, The U.S. government is obligated as well

by the Non-Proliferation Treaty, in force since 1970 that

requires the signers to pursue negotiations in good faith and

to eliminate nuclear weapons at an early date. The U.S.

government is also obligated by the Comprehensive Test Ban

Treaty, which prohibits full-scale nuclear explosions.

WHEREAS, the members of the United Nations are

currently negotiating a treaty to prohibit nuclear weapons,

leading towards their total elimination.

THEREFORE, the work being . . . done at Kings Bay

Naval Submarine Base violates all these agreements and is

thus criminal.

...

Against these continuing violations of treaty law, we

assert our right and duty to civil resistance against nuclear

weapons. Furthermore, we affirm as crucial the human right

to be free from these crimes. The Nuremberg Principles not

only prohibit such crimes but oblige those of us aware of the

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8 Opinion of the Court 20-14341

government to the door and left the book Doomsday Machine,

Confessions of a Nuclear War Planner by Daniel Ellsberg at the

building. Grady and Hennessy then joined the others at the static

missile display, where they hammered on the display, hung more

crime scene tape, and spray-painted messages on the base of the

display. Other group members removed signage and part of a

monument, poured more human blood, and spray-painted other

monuments. 4

crime to act against it. “Complicity in the commission of a

crime against peace, a war crime, or a crime against

humanity . . . is a crime under International law”. The

United Nations Charter further reinforced this principle and

made it part of the binding international law. Similarly, the

Convention on the Prevention and Punishment of the Crime

of Genocide, to which the United States is a signatory, makes

it clear that private individuals can be held responsible for

acts of genocide.

The ongoing building and maintenance of Trident

submarines and ballistic missile systems constitute war

crimes that can and should be investigated and prosecuted by

judicial authorities at all levels. As citizens, we are required

by International Law to denounce and resist known crimes.

For the sake of the whole human family threatened

by nuclear weapons, and for the sake of our Planet Earth,

which is abused and violated, we indict the Kings Bay Naval

Submarine Base and all government officials, agencies, and

contractors as responsible for perpetuating these war crimes.

4 The fact that Grady, Hennessy, and Trotta did not personally engage in

these additional acts is not relevant because they are each “liable for any act

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20-14341 Opinion of the Court 9

Meanwhile, Trotta proceeded with other individuals to the

highly secured “Limited Area” where they cut through fencing

and concertina wire and entered the area. There they displayed

banners protesting the morality of nuclear weapons and prayed.

After several hours, all seven individuals were apprehended

peacefully by security. They all were subsequently indicted on

charges of: (1) conspiracy, in violation of 18 U.S.C. §§ 371 and 2; 5

(2) destruction of property on a naval installation, in violation of

18 U.S.C. §§ 1363 and 2; 6 (3) depredation of government property,

in violation of 18 U.S.C. §§ 1361 and 2; 7 and (4) trespass, in

done by a co-conspirator in furtherance of the conspiracy.” See United States

v. Loyd, 743 F.2d 1555, 1561 (11th Cir. 1984).

5

“If two or more persons conspire either to commit any offense against the

United States, or to defraud the United States, or any agency thereof in any

manner or for any purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined under this title or

imprisoned not more than five years, or both.” 18 U.S.C. § 371.

6

“Whoever, within the special maritime and territorial jurisdiction of the

United States, willfully and maliciously destroys or injures any structure,

conveyance, or other real or personal property, or attempts or conspires to

do such an act, shall be fined under this title or imprisoned not more than

five years, or both, and if the building be a dwelling, or the life of any person

be placed in jeopardy, shall be fined under this title or imprisoned not more

than twenty years, or both.” 18 U.S.C. § 1363.

7 Section 1361 provides:

Whoever willfully injures or commits any depredation against any property

of the United States, or of any department or agency thereof, or any property

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10 Opinion of the Court 20-14341

violation of 18 U.S.C. § 1382. 8

As relevant to this appeal, Grady, Hennessy, and Trotta

each filed virtually identical motions to dismiss the indictment,

arguing that their prosecution violated RFRA. Specifically, they

asserted that their actions at the Kings Bay naval base were “in

accordance with their deeply held religious beliefs that nuclear

weapons are immoral and illegal,” and the government’s

prosecution of them substantially burdened their religious

exercise in violation of RFRA. They maintained that, under

RFRA, the government could not show that the decision to

charge the defendants was the least-restrictive means of

furthering its compelling interests in the safety and security of the

base. Grady, Hennessy, and Trotta proposed the following less

which has been or is being manufactured or constructed for the United

States, or any department or agency thereof, or attempts to commit any of

the foregoing offenses, shall be punished as follows:

If the damage or attempted damage to such property exceeds the sum of

$1,000, by a fine under this title or imprisonment for not more than ten

years, or both; if the damage or attempted damage to such property does not

exceed the sum of $1,000, by a fine under this title or by imprisonment for

not more than one year, or both.

18 U.S.C. § 1361.

8

“Whoever, within the jurisdiction of the United States, goes upon any

military, naval, . . . post, fort, arsenal, yard, station, or installation, for any

purpose prohibited by law or lawful regulation . . . Shall be fined under this

title or imprisoned not more than six months, or both.” 18 U.S.C. § 1382.

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20-14341 Opinion of the Court 11

restrictive alternatives of achieving the government’s compelling

interest: (1) reducing the number and severity of the charges;

(2) not prosecuting and offering instead civil injunctions, civil

damages, community service, “ban and bar” letters, or pre-trial

diversion; and (3) giving the defendants permission to practice

symbolic disarmament in a designated area on the base. Thus,

they argued that the indictment must be dismissed. The

government opposed the motions.

Following a two-day evidentiary hearing, the district court

denied their motions to dismiss. The district court held that

Grady, Hennessy, and Trotta had established a prima facie case

under RFRA because they had shown that their actions at the

Kings Bay naval base were a sincere religious exercise and that the

laws in question substantially burdened their religious exercise.

The district court then explained that the government met its

burden of demonstrating that it had a compelling interest in the

(1) safety, (2) security, and (3) smooth operation of the naval base,

naval base personnel, and naval base assets. Finally, the district

court explained that the government met its burden of

establishing that the application of the laws in question to each of

the defendants was “the least restrictive means of furthering any

one of th[o]se compelling government interests.”

Grady, Hennessy, and Trotta proceeded to a jury trial and

were convicted of all charges.

For sentencing purposes, the statutory maximum for the

conspiracy offense was five years’ imprisonment. See 18 U.S.C.

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12 Opinion of the Court 20-14341

§ 371. The statutory maximum for destruction of property on a

naval installation was five years’ imprisonment. See 18 U.S.C.

§ 1363. The statutory maximum for depredation of government

property was 10 years’ imprisonment. See 18 U.S.C. § 1361.

Finally, the statutory maximum for trespass was six months’

imprisonment. See 18 U.S.C. § 1382. The district court sentenced

Grady to a below-guidelines sentence of 12 months and one day

imprisonment to be followed by three years of supervised

release. 9 Hennessy received a below-guidelines sentence of 10

months’ imprisonment to be followed by three years of

supervised release. 10 And Trotta received a below-guidelines

sentence of 14 months’ imprisonment to be followed by three

years of supervised release. 11 The district court also imposed

restitution in the amount of $33,503.51, for which each defendant

was jointly and severally liable.

This appeal followed.

II. Discussion

9

Grady’s advisory guidelines range was 21 to 27 months’ imprisonment.

10

Hennessy’s advisory guidelines range was 15 to 21 months’ imprisonment.

11

Trotta’s advisory guidelines range was 21 to 27 months’ imprisonment.

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20-14341 Opinion of the Court 13

A. Whether the district court erred in denying the defendants’

motions to dismiss the indictment under RFRA

Grady, Hennessy, and Trotta argue that the district court

erred in denying their respective motions to dismiss the

indictment under RFRA. They maintain that the government

failed to meet its burden to prove that criminal prosecution was

the least-restrictive means of achieving the government’s

compelling interests, particularly in light of the defendants’

proposed alternative of permitting symbolic disarmament on a

designated area of the base.

“Generally, we review the district court’s denial of a

motion to dismiss an indictment for abuse of discretion.” United

States v. Farias, 836 F.3d 1315, 1323 (11th Cir. 2016). However,

whether government action “comports with RFRA is a pure

question of law,” which is subject to de novo review. Lawson v.

Singletary, 85 F.3d 502, 511–12 (11th Cir. 1996).

RFRA provides the following protection against substantial

burdens on a person’s religious exercise by the government:

(a) In general

Government shall not substantially burden a

person’s exercise of religion even if the burden

results from a rule of general applicability, except as

provided in subsection (b).

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14 Opinion of the Court 20-14341

(b) Exception

Government may substantially burden a person’s

exercise of religion only if it demonstrates that

application of the burden to the person—

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of furthering

that compelling government interest.

(c) Judicial relief

A person whose religious exercise has been

burdened in violation of this section may assert that

violation as a claim or defense in a judicial

proceeding and obtain appropriate relief against a

government.

42 U.S.C. § 2000bb-1. “The term ‘religious exercise’ includes any

exercise of religion, whether or not compelled by, or central to, a

system of religious belief.” Id. §§ 2000bb-2(4), 2000cc-5(7)(A).

Further, “the ‘exercise of religion’ under RFRA must be given the

same broad meaning that applies under [the Religious Land Use

and Institutionalized Persons Act].” Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 696 n.5 (2014).

Thus, to establish a prima facie RFRA claim, a defendant

must first show (1) that he or she was exercising (or was seeking

to exercise) his or her sincerely held religious belief, and (2) that

the government substantially burdened the defendant’s religious

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20-14341 Opinion of the Court 15

exercise. Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir. 2015).

The burden then shifts to the government to demonstrate that

(3) it has a compelling interest, and (4) the challenged action in

question is the least-restrictive means of furthering that interest.

Id. at 1205, 1207.

RFRA may be raised as a defense to criminal prosecution.

See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise

has been burdened in violation of this section may assert that

violation as a claim or defense in a judicial proceeding and obtain

appropriate relief against a government.”); see also United States

v. Christie, 825 F.3d 1048, 1055 (9th Cir. 2016) (explaining that

RFRA may be invoked as a defense to a criminal prosecution);

United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011)

(same).

In this case, the parties agree that the defendants were

exercising sincerely held religious beliefs, the government

substantially burdened the defendants’ religious exercise, and the

government has a compelling interest. Accordingly, the fourth

prong in the RFRA analysis is the only prong in dispute in this

appeal—whether the government met its burden of

demonstrating that criminal prosecution of the defendants was

the least-restrictive means of furthering its significant compelling

interests in the safety and security of the naval base, naval base

personnel, and naval base assets. Grady, Hennessy, and Trotta

maintain that their proposed alternative of permitting their

religious exercise of “symbolic disarmament” in a designated area

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16 Opinion of the Court 20-14341

is the least-restrictive means, and, therefore under RFRA, the

indictment should have been dismissed.

We thus turn to the scope of the government’s burden.

The least-restrictive-means standard is exceptionally

demanding, and it requires the government to show

that it lacks other means of achieving its desired goal

without imposing a substantial burden on the

exercise of religion by the objecting party. If a less

restrictive means is available for the Government to

achieve its goals, the Government must use it.

Holt v. Hobbs, 574 U.S. 352, 364–65 (2015) (alterations adopted)

(quotations and internal citations omitted). In meeting its

burden, the government must refute the alternative schemes

proposed by the petitioners. Smith v. Owens, 13 F.4th 1319, 1326

(11th Cir. 2021); see also Wilgus, 638 F.3d at 1289 (explaining that,

to meet its burden, the government “must refute the alternative

schemes offered by the challenger”); see also Christie, 825 F.3d at

1061 (“At a minimum, the government must address those

alternatives of which it has become aware during the course of

this litigation,” and “must show that each proposed alternative

either is not ‘less restrictive’ within the meaning of RFRA, or is

not plausibly capable of allowing the government to achieve all of

its compelling interests.”). 12

12

To the extent that Grady argues that the government was required to

proffer less restrictive alternatives and failed to do so, she is wrong. The

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20-14341 Opinion of the Court 17

Pointing to permitted protests of other groups at the naval

base, the defendants proposed that a less restrictive alternative

would be for the naval base to make arrangements for them to

practice symbolic disarmament in a designated area (an option

that they did not pursue prior to entering the naval base). In

offering this alternative, the defendants attempt to recast their

religious exercise as merely requiring them to be on base property

such that their religious exercise could be accommodated by the

Kings Bay naval base in the same way that candlelight vigils and

other religious exercises are accommodated for other groups.

Their argument for this alternative is misplaced. In

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 439 (2006), the Supreme Court explained that, in

enacting RFRA, “Congress has determined that courts should

strike sensible balances, pursuant to a compelling interest test that

requires the Government to address the particular [religious]

practice at issue.” See also Holt, 574 U.S. at 361–62 (explaining

that “RLUIPA’s ‘substantial burden inquiry’ asks whether the

government has substantially burdened” the particular religious

exercise in question, “not whether the RLUIPA claimant is able to

government does not bear the burden of proffering less restrictive

alternatives or demonstrating that it actually considered and rejected those

alternatives. See Smith, 13 F.4th at 1326; Knight v. Thompson, 797 F.3d 934,

946–47 (11th Cir. 2015).

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18 Opinion of the Court 20-14341

engage in other forms of religious exercise”). Here, because the

defendants were seeking relief from prosecution for past religious

practice, “the particular practice at issue” for purposes of the

RFRA analysis is necessarily the religious practices engaged in by

the defendants on April 4, 2018. In other words, the district court

had to determine whether an exemption under RFRA could be

granted for the particular religious exercises engaged in on April

4, 2018. See id. Thus, neither the district court nor this Court

could consider whether lesser restrictive alternatives were

available for the Plowshares group to protest in a different

manner than the destructive manner in which they did in the late

night hours of April 4, 2018.

Instead, in order to be a viable least-restrictive means for

purposes of RFRA, the proposed alternative needed to

accommodate both the religious exercise practiced in this case—

unauthorized entry onto the naval base and destructive actions,

including spray painting monuments, doors, and sidewalks,

pouring human blood on doors and other areas, hammering on a

static missile display, hanging banners and crime scene tape, as

well as removing and partially destroying signage and

monuments around the naval base—and simultaneously achieve

the government’s compelling interests in the safety and security

of the naval base, naval base assets, personnel, and critical

operations. Christie, 825 F.3d at 1061.

The defendants, however, failed to proffer a least-

restrictive means that would simultaneously accommodate their

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20-14341 Opinion of the Court 19

religious exercise while protecting the government’s compelling

interests. Permitting the defendants to practice symbolic yet

destructive disarmament in a designated area would not be an

effective means of achieving the government’s interest in the

safety and security of the naval base’s assets. Their “symbolic”

disarmament would still damage naval base property and assets.

Because this alternative does not achieve all the government’s

compelling interests, it is not a viable least-restrictive means. See

Knight, 797 F.3d at 945 (holding that plaintiffs’ RLUIPA claim

failed because the plaintiffs’ proposed alternatives to the prison’s

short-hair policy for male inmates—including allowing an

exemption for certain inmates, requiring inmates to search their

own hair, and using a computer program to alter inmate

photographs—did not eliminate the stated security, discipline,

hygiene, and safety concerns).

Simply put, RFRA is not a “get out of jail free card,”

shielding from criminal liability individuals who break into secure

naval installations and destroy government property, regardless of

the sincerity of their religious beliefs. Just as “no Supreme Court

case supports the destruction of government, or another’s,

property on free exercise grounds,” United States v. Allen, 760

F.2d 447, 452 (2d Cir. 1985), nothing in RFRA supports

destructive, national-security-compromising conduct as a means

of religious exercise.

The defendants’ comparison of their case to that of

Wisconsin v. Yoder, 406 U.S. 205 (1972), and United States v.

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20 Opinion of the Court 20-14341

Hoffman, 436 F. Supp. 3d 1272 (D. Ariz. 2020), is unpersuasive. In

Yoder, a First Amendment Free Exercise Clause case, the

Supreme Court affirmed the Wisconsin Supreme Court’s decision

overturning Amish parents’ convictions for violating the state’s

compulsory school attendance law based on the Free Exercise

Clause. 406 U.S. at 207. The Court explained that schooling

beyond the eighth grade was contrary to the Amish faith, and the

state’s facially neutral compulsory attendance law “severe[ly]”

burdened the practice of the Amish religion—it compelled the

Amish, “under threat of criminal sanction, to perform acts

undeniably at odds with fundamental tenets of their religious

beliefs.” Id. at 210–11, 218, 220–21. The Court held that the State

failed to meet its burden of showing how its interest in educating

citizens so that they could participate effectively and intelligently

in society would be adversely affected by granting an exemption

to the Amish—particularly considering the Amish’s alternative

mode of informal vocational education beyond the eighth grade.

Id. at 222–229, 235–36. In other words, the State failed to show

that its asserted compelling interest could not be achieved with an

exception to the compulsory education law for the Amish.

And in Hoffman, members of “No More Deaths,” a faith-

based humanitarian aid organization associated with the

Unitarian Universalist Church, entered a wildlife refuge without a

permit, drove on a restricted-access road, and left food, water, and

other supplies along foot trails frequently used by persons

entering the United States unlawfully, in an effort to prevent

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20-14341 Opinion of the Court 21

deaths from dehydration and exposure. 436 F. Supp. at 1276–77.

As a result of their actions, the members of the group were

criminally charged with entering the wildlife refuge without a

permit, abandoning property, and driving in a wilderness area, in

violation of several regulations. Id. at 1278. They raised a RFRA

defense at a bench trial before a magistrate judge but were

convicted as charged. Id. On appeal, the district court reversed

their convictions based on RFRA. Id. at 1283–89. Specifically, the

district court found that the government failed to demonstrate

that prosecution was the least-restrictive means of achieving its

environmental interests in the refuge because it did not show why

allowing the defendants’ practice so long as they picked up any

trash would not achieve the government’s interest. Id. at 1289.

Unlike the situations presented in Yoder and Hoffman,

however, as explained previously, it would be impossible to

achieve all of the government’s compelling interests in the safety

and security of the Kings Bay naval base, its base personnel, and

its base assets and also accommodate the defendants’ destructive

religious exercise in this case. The need for the uniform

application of laws prohibiting unauthorized entry on naval base

property, as well as the depredation and destruction of naval base

assets, are the least-restrictive means of achieving the

government’s compelling interest in national security—an

interest of the highest order—and precludes the recognition of the

proposed exceptions to these criminal laws, even under RFRA.

See, e.g., O Centro, 546 U.S. at 436 (“We do not doubt that there

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22 Opinion of the Court 20-14341

may be instances in which a need for uniformity precludes the

recognition of exceptions to generally applicable laws under

RFRA.”); Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) (“We do

not read RLUIPA to elevate accommodation of religious

observances over an institution’s need to maintain order and

safety. Our decisions indicate that an accommodation must be

measured so that it does not override other significant interests.”);

United States v. Lee, 455 U.S. 252, 260 (1982) (holding, in a pre-

RFRA context, that “[b]ecause the broad public interest in

maintaining a sound tax system is of such a high order, religious

belief in conflict with the payment of taxes affords no basis for

resisting the tax”); Braunfeld v. Brown, 366 U.S. 599, 603 (1961)

(“[T]he freedom to act, even when the action is in accord with

one’s religious convictions, is not totally free from legislative

restrictions.”). Accordingly, the district court did not err in

denying the defendants’ motions to dismiss the indictment.

B. Whether the district court erred when it held the

defendants jointly and severally liable for the full amount of

restitution

Grady, Hennessy, and Trotta argue that the district court

erred in holding them jointly and severally liable for the full

amount of the ordered restitution—$33,503.51. 13 They maintain

13

The government contends that only Hennessy and Trotta make this

argument, but this contention ignores Grady’s statement of adoption in her

brief.

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20-14341 Opinion of the Court 23

that the district court should have made findings as to the damage

caused by their respective individual actions and held them each

personally liable for only that amount. We disagree.

“We review de novo the legality of an order of restitution,

but review for abuse of discretion the determination of the

restitution value of lost or destroyed property. We review for

clear error factual findings underlying a restitution order.” United

States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007)

(quotation and internal citations omitted); cf. United States v.

Alas, 196 F.3d 1250, 1251 (11th Cir. 1999) (reviewing imposition of

joint and several liability for restitution for an abuse of discretion).

The Mandatory Victims Restitution Act provides that the

district court “shall order” restitution for certain offenses,

including “an offense against property under [Title 18],” like the

offenses in this case. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A).

Section 3664 sets forth the procedures for ordering restitution and

provides that the district court “shall order restitution to each

victim in the full amount of each victim’s losses as determined by

the court.” Id. § 3664(f)(1)(A). Moreover,

[i]f the court finds that more than 1 defendant has

contributed to the loss of a victim, the court may

make each defendant liable for payment of the full

amount of restitution or may apportion liability

among the defendants to reflect the level of

contribution to the victim’s loss and economic

circumstances of each defendant.

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24 Opinion of the Court 20-14341

Id. § 3664(h) (emphasis added). Accordingly, “a district court does

not exceed its authority by ordering a defendant to pay restitution

for losses which result from acts done in furtherance of the

conspiracy of which the defendant is convicted.” United States v.

Obasohan, 73 F.3d 309, 311 (11th Cir. 1996); see also United States

v. Davis, 117 F.3d 459, 462–63 (11th Cir. 1997) (concluding that

the district court did not err in holding the defendants jointly and

severally liable for the full amount of the losses because the

defendants had substantial involvement in the fraud scheme that

caused the losses and “a defendant is liable for reasonably

foreseeable acts of others committed in furtherance of the

conspiracy for which the defendant has been convicted”).

Here, the losses in question resulted from acts which were

part of the conspiracy of which Grady, Hennessy, and Trotta

were convicted. Therefore, the district court had the authority to

hold them jointly and severally liable for the full amount of

restitution. 18 U.S.C. § 3664(h); Obasohan, 73 F.3d at 311.

Accordingly, the district court did not abuse its discretion or

otherwise err in holding the defendants jointly and severally liable

for the full amount of the restitution.

C. Whether the district court erred in denying a reduction for

acceptance of responsibility for Hennessy and Trotta

Hennessy and Trotta argue that the district court abused its

discretion when it denied their respective requests for acceptance-

of-responsibility reductions under U.S.S.G. § 3E1.1. They

maintain that they never denied engaging in the conduct in

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20-14341 Opinion of the Court 25

question and went to trial only because of their RFRA defense.

Thus, they argue that, under these circumstances, they are each

entitled to a reduction for acceptance of responsibility.

“We review the district court’s determination of

acceptance of responsibility only for clear error. [The]

determination that a defendant is not entitled to acceptance of

responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal

responsibility.” United States v. Amedeo, 370 F.3d 1305, 1320–21

(11th Cir. 2004) (quotation and internal citation omitted); see also

United States v. Andres, 960 F.3d 1310, 1318 (11th Cir. 2020)

(same).

U.S.S.G. § 3E1.1(a) instructs the district court to decrease a

defendant’s base offense level by two if he “clearly demonstrates

acceptance of responsibility for his offense.” The commentary to

the Guidelines indicates that this reduction “is not intended to

apply to a defendant who puts the government to its burden of

proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.”

U.S.S.G. § 3E1.1(a), cmt. (n.2). “[T]he reduction is intended to

reward defendants who express contrition for their wrongdoing

and evidence a desire to reform their conduct.” Andres, 960 F.3d

at 1318 (quotation omitted).

Nevertheless, the commentary notes that a “[c]onviction

by trial . . . does not automatically preclude a defendant from

consideration for such a reduction,” although such instances in

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26 Opinion of the Court 20-14341

which the reduction would still be appropriate will be “rare.”

U.S.S.G. § 3E1.1(a), cmt. (n.2). For instance, a defendant may still

be eligible for the reduction “where [he] goes to trial to assert and

preserve issues that do not relate to factual guilt (e.g., to make a

constitutional challenge to a statute or a challenge to the

applicability of a statute to his conduct). Under those

circumstances, however, a determination that a defendant has

accepted responsibility will be based primarily upon pre-trial

statements and conduct.” Id. Because “[t]he sentencing judge is

in a unique position to evaluate a defendant’s acceptance of

responsibility . . . the determination of the sentencing judge is

entitled to great deference on review.” United States v. Williams,

408 F.3d 745, 757 (11th Cir. 2005) (quoting U.S.S.G. § 3E1.1, cmt.

(n.5)).

In denying the reduction for Hennessy and Trotta, the

district court found that neither defendant had clearly

demonstrated acceptance of responsibility because they continued

to deny the illegality of their actions and put the government to

its burden of proof. This finding was not clearly erroneous and is

supported by the record.

Prior to trial, the defendants filed notices of intent to

present a RFRA defense at trial to which the government

objected. The district court sustained the government’s objection

and held that it had already addressed the RFRA issue in denying

the defendants’ motions to dismiss the indictment, and the

defendants could not relitigate it before the jury. At trial, while

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20-14341 Opinion of the Court 27

the defendants did not deny that they engaged in the conduct in

question, they denied that their actions constituted crimes, and

their statements throughout the district court proceedings

demonstrated a willingness to continue to engage in such

conduct.14 In other words, after their effort to challenge the

applicability of the criminal statutes to their conduct proved

unsuccessful, the defendants then proceeded to a multi-day jury

trial and put the government to its burden of proof. The

defendants cannot argue that they proceeded to a jury trial in

order to continue to challenge the applicability of the criminal

statutes to their allegedly religious conduct, because they were

not permitted to raise a RFRA defense at trial. While each

14

For instance, at the hearing on the motion to dismiss the indictment,

Trotta testified that the group would not have hesitated to destroy nuclear-

related hardware and was “disappointed” that they did not encounter a

submarine while on the base, and that if they had, they would not have

hesitated to engage in further symbolic disarmament and “transform it.”

Later, at his sentencing, Trotta asserted that all of his criminal history is for

acts in opposition to “American war crime[s]” and indicated that “what our

country needs desperately is for a great deal more resistance to its ongoing

foreign policy which is a threat to the globe and not merely through nuclear

weapons, but even through simply the ongoing wars.” Similarly, following

the jury’s guilty verdict, Hennessy made a statement to the media outside

the courthouse implying that she was willing to continue to engage in this

type of conduct again stating, “[t]he efficiency of the state can never be

underestimated; yet, we proceed in humility. The weapons are still there.

The treaties are being knocked down one after the next. But we are called to

keep trying, and we will do this together. We have no other choice.”

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28 Opinion of the Court 20-14341

defendant has a constitutional right to a jury trial, under the

circumstances in this case, the exercise of that right was

inconsistent with the reduction for acceptance of responsibility.

Andres, 960 F.3d at 1318. Accordingly, this is not one of those

“rare” instances in which the record clearly establishes that the

defendant accepted responsibility and should receive a reduction

despite putting the government to its burden of proof at trial.

Moreover, we note that, at sentencing, the district court

stated that, “regardless of how the guidelines objections had come

out,” it would have imposed the same sentence for both

Hennessy and Trotta. Accordingly, any alleged error in failing to

award Hennessy and Trotta reductions for acceptance of

responsibility was harmless. See United States v. Keene, 470 F.3d

1347, 1348–49 (11th Cir. 2006) (holding that a guidelines error is

harmless if the district court unambiguously expressed that it

would have imposed the same sentence, regardless of the

guidelines calculation).

D. Whether the district court erred when it used the total

damages amount to enhance Hennessy’s base offense level under

U.S.S.G. § 2B1.1(b)(1)(C)

Hennessy argues that the district court abused its discretion

when it used the total loss amount of $33,503.31 to increase her

base offense level under U.S.S.G. § 2B1.1(b)(1)(C). She maintains

that the government failed to present any evidence of the loss

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20-14341 Opinion of the Court 29

amount at sentencing, and because it was her first Plowshares

action, 15 the record does not support the conclusion that the acts

of her codefendants were reasonably foreseeable to her.

Therefore, she argues that only the loss caused by her specific

actions should have been attributed to her.

The district court’s interpretation of the Guidelines and the

application of the Guidelines to the facts are reviewed de novo.

United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004).

When the government seeks to apply an enhancement under the

Sentencing Guidelines over the defendant’s factual objection, the

government has the burden of introducing sufficient and reliable

evidence to prove the necessary facts by a preponderance of the

evidence. United States v. Washington, 714 F.3d 1358, 1361 (11th

Cir. 2013). “The district court is permitted to base its loss

determination on factual findings derived from, among other

things, evidence heard during trial, undisputed statements in the

15

Although the events at the Kings Bay naval base may have been

Hennessy’s first Plowshares-related action, like her codefendants, Hennessy

was no stranger to protests and similar demonstrations. Hennessy, who is in

her 60s, described herself at the evidentiary hearing as a nonviolent

“anarchist[],” and admitted that she had been arrested (but never convicted)

numerous times dating back to 1979 for her protest-related activities in

opposition to nuclear power plants and Guantanamo Bay. When asked to

estimate how many times she had been arrested, she stated “not enough

times”—although we note that according to her PSI, she was arrested 16

times between 2008 and 2018 alone.

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30 Opinion of the Court 20-14341

[presentence investigation report (‘PSI’)], or evidence presented

during the sentencing hearing.” United States v. Bradley, 644 F.3d

1213, 1290 (11th Cir. 2011) (quotation omitted).

U.S.S.G. § 2B1.1 applies to offenses involving property

damage or destruction. See U.S.S.G. § 2B1.1. It directs the court

to increase the offense level by four if the loss exceeded “more

than $15,000” but was less than $40,000. Id. § 2B1.1(b)(1)(C). The

commentary further provides that “[t]he court need only make a

reasonable estimate of the loss. The sentencing judge is in a

unique position to assess the evidence and estimate the loss based

upon that evidence. For this reason, the court’s loss

determination is entitled to appropriate deference.” Id. § 2B1.1

cmt. (n.3(C)).

Because Hennessy’s convictions were based upon her

participation in a criminal conspiracy, relevant conduct under the

Guidelines included “all acts and omissions of others that were . . .

(i) within the scope of the jointly undertaken criminal activity, (ii)

in furtherance of that criminal activity, and (iii) reasonably

foreseeable in connection with that criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). To determine what acts of other co-conspirators

are reasonably foreseeable to a defendant, the court must engage

in a two-prong analysis. United States v. McCrimmon, 362 F.3d

725, 731 (11th Cir. 2004). First, the court must determine the

“scope of criminal activity the defendant agreed to jointly

undertake.” Id. Then, the court must “consider all reasonably

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20-14341 Opinion of the Court 31

foreseeable acts and omissions of others in the jointly undertaken

criminal activity.” Id. (quotation omitted).

The evidence at trial established that Hennessy helped plan

the actions at the Kings Bay naval base with the other Plowshares

members for over two years. And on the night in question, she

went to the naval base with the group knowing that they were

armed with bolt cutters, a pry bar, spray paint, bottles of human

blood, and other tools. Although she contends that she had no

way of knowing what specific actions her codefendants would use

those tools for once on the naval base, given her knowledge of

the overall plan to conduct symbolic yet destructive

disarmament, the district court did not err in determining that the

acts of her codefendants were reasonably foreseeable to

Hennessy. Accordingly, the district court did not err in holding

her accountable for the entire loss amount when imposing the

U.S.S.G. § 2B1.1 enhancement.16 Bradley, 644 F.3d at 1290;

McCrimmon, 362 F.3d at 731.

16

Hennessy also argues that the district court’s determination of the loss

amount was improper in light of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), in which the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Hennessy was sentenced to 10 months’

imprisonment, which is well below the statutory maximum—a total of 20.5

years—and, therefore, Apprendi has no application here. Moreover,

Hennessy’s assertion that the loss amount had to be submitted to a jury and

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32 Opinion of the Court 20-14341

E. Whether the district court erred in failing to address

Grady’s RFRA-related sentencing argument

At sentencing, Grady argued that RFRA must be

considered in the context of the 18 U.S.C. § 3553(a) factors when

determining the appropriate sentence. The district court then

imposed a below-guidelines total sentence of 12 months and one

day imprisonment to be followed by three years of supervised

release, citing Grady’s health issues as a reason for the lesser

sentence. When asked whether she had any objections, Grady

stated that she did not. [Id. at 95–96] However, now on appeal,

Grady argues that the district court failed to address her argument

that RFRA must be considered in the context of the § 3553(a)

factors. She acknowledges, however, that “a body of law upon

which this argument rests has not been specifically developed as

yet.”

When, as here, a defendant fails to object to an alleged

sentencing error before the district court, we review for plain

proven beyond a reasonable doubt to avoid the constitutional concerns

associated with judicial factfinding as articulated in Apprendi is squarely

foreclosed by this Court’s precedent. See United States v. Dudley, 463 F.3d

1221, 1228 (11th Cir. 2006) (holding that there is no error under Apprendi

when the defendant is not sentenced beyond the statutory maximum and

“district courts may still impose fact-based sentencing enhancements under

an advisory guidelines system without violating the Sixth Amendment”).

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20-14341 Opinion of the Court 33

error. See United States v. Rodriguez, 627 F.3d 1372, 1377 (11th

Cir. 2010). To establish plain error, a defendant must show that

there was an “(1) error, (2) that is plain and (3) that affect[ed] [her]

substantial rights. If all three conditions are met, [we] may then

exercise [our] discretion to notice a forfeited error, but only if (4)

the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Turner, 474

F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted). “It is the law

of this circuit that, at least where the explicit language of a statute

or rule does not specifically resolve an issue, there can be no plain

error where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319

F.3d 1288, 1291 (11th Cir. 2003). Accordingly, Grady cannot

establish plain error because, as she acknowledges, no precedent

exists at this time that instructs district courts to consider RFRA at

sentencing.

F. Whether the district court abused its discretion in failing to

give Grady’s requested mistake-of-fact jury instruction

At trial, Grady requested that the district court instruct the

jury as to mistake of fact.17 Specifically, she argued that she had

17

Grady requested the following jury charge:

An honest mistake of fact is a complete defense to the charge

in the indictment because it is inconsistent with the existence

of willfulness, which is an essential part of the charge.

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34 Opinion of the Court 20-14341

offered evidence that she possessed an “honest belief” that she

was “acting lawfully” based on her sincerely held religious belief

that nuclear weapons “are indeed immoral,” and if the jury were

to believe that the government was correct that nuclear weapons

are essential to national security and lawful, then she would be

mistaken—consistent with a mistake of fact instruction. In other

words, she asserted that the government’s position and her

position cannot both be right—one has to be mistaken—and if

hers was incorrect then she should get the benefit of a

mistake-of-fact instruction because she honestly believed that her

actions were lawful and that she was “uphold[ing] the highest

law.” The district court denied this request, concluding that the

instruction was “not an appropriate statement of the law for this

case.” On appeal, Grady argues that the denial of this instruction

was an abuse of discretion and because she possessed an honest

belief that her actions were lawful, she could not be convicted of

willful criminal conduct.

Such an honest mistake negates the criminal intent of a

defendant when the defendant’s acts would be lawful, if the

facts were as she supposed them to be. The burden of proof is

not on the Defendant to prove her honest belief of a mistaken

fact, since she has no burden to prove anything.

A defendant whose actions are based on her honest belief that

she was acting lawfully is not chargeable with willful criminal

conduct-even if her belief was erroneous or mistaken.

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20-14341 Opinion of the Court 35

“A criminal defendant has the right to have the jury

instructed on her theory of defense . . . . A trial court may not

refuse to charge the jury on a specific defense theory where the

proposed instruction presents a valid defense and where there has

been some evidence adduced at trial relevant to that defense.”

United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995)

(quotations and internal citations omitted). “We review a district

court’s refusal to give a requested jury instruction for abuse of

discretion.” United States v. Gumbs, 964 F.3d 1340, 1347 (11th

Cir. 2020) (quotation omitted).

A district court abuses its discretion if the requested

instruction was a correct statement of the law, the

subject matter of the instruction was not

substantially covered by other instructions, and the

instruction dealt with an issue in the trial court that

was so important that failure to give it seriously

impaired the defendant’s ability to defend himself.

Id. (alteration adopted) (quotation omitted). Here, the district

court did not abuse its discretion in declining to give the mistake-

of-fact instruction.

To prove destruction of government property on a naval

installation, the government had to prove beyond a reasonable

doubt that Grady (1) willfully and maliciously; (2) destroyed or

injured (or attempted to destroy or injure); (3) any structure,

conveyance, or other real or personal property; (4) located within

the special maritime and territorial jurisdiction of the United

States. See 18 U.S.C. § 1363. Similarly, to prove depredation of

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36 Opinion of the Court 20-14341

government property, the government had to prove that Grady

(1) willfully; (2) injured and committed a depredation; (3) against

United States property; (4) which resulted in over $1,000 dollars

of damage. See id. § 1361. In both instances, the word “willfully”

refers to consciousness of the conduct in question. In other

words, the government had to prove that Grady acted

consciously and deliberately, not that she knew or believed her

actions were illegal. See United States v. Urfer, 287 F.3d 663, 666

(7th Cir. 2002) (rejecting similar argument to Grady’s and holding

that “[d]estroying other people’s property is malum in se, and

thus is willful provided only that the defendant knows that he’s

destroying another person’s property without the person’s

authorization”); United States v. Kelly, 676 F.3d 912, 919 (9th Cir.

2012) (holding that a defendant violates § 1363 “when he willfully

acts, intending to destroy or injure any such property, and has no

legal justification or excuse for his action”).

There is no question that Grady acted consciously and

deliberately. The fact that she honestly believed her actions were

lawful because of her personal views on nuclear weapons is

irrelevant. See Kelly, 676 F.3d at 919 (“[E]ven defendants who

genuinely believe that their intentional, unlawful actions are

consistent with ‘the conscience of the people,’ as appellants put it,

are guilty.”); United States v. Moylan, 417 F.2d 1002, 1009 (4th

Cir. 1969) (holding that “the law does not allow the seizure of

public records and their mutilation or destruction, even when this

is done as an act of conscience to dramatize the protest of a

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20-14341 Opinion of the Court 37

presumed evil”); see also Heien v. North Carolina, 574 U.S. 54, 67

(2014) (“[A]n individual generally cannot escape criminal liability

based on a mistaken understanding of the law.”). Rather, as the

Fourth Circuit emphasized in Moylan when confronted with a

similar argument:

From the earliest times when man chose to guide his

relations with fellow men by allegiance to the rule of

law rather than force, he has been faced with the

problem how best to deal with the individual in

society who through moral conviction concluded

that a law with which he was confronted was unjust

and therefore must not be followed. Faced with the

stark reality of injustice, men of sensitive conscience

and great intellect have sometimes found only one

morally justified path, and that path led them

inevitably into conflict with established authority

and its laws. Among philosophers and religionists

throughout the ages there has been an incessant

stream of discussion as to when, if at all, civil

disobedience, whether by passive refusal to obey a

law or by its active breach, is morally justified.

However, they have been in general agreement that

while in restricted circumstances a morally

motivated act contrary to law may be ethically

justified, the action must be non-violent and the

actor must accept the penalty for his action. In other

words, it is commonly conceded that the exercise of

a moral judgment based upon individual standards

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38 Opinion of the Court 20-14341

does not carry with it legal justification or immunity

from punishment for breach of the law.

The defendants’ motivation in the instant case— the

fact that they engaged in a protest in the sincere

belief that they were breaking the law in a good

cause—cannot be acceptable legal defense or

justification. Their sincerity is beyond question. It

implies no disparagement of their idealism to say

that society will not tolerate the means they chose to

register their opposition to the war. If these

defendants were to be absolved from guilt because

of their moral certainty that the war in Vietnam is

wrong, would not others who might commit

breaches of the law to demonstrate their sincere

belief that the country is not prosecuting the war

vigorously enough be entitled to acquittal? Both

must answer for their acts.

417 F.2d at 1008–09 (emphasis added); see also United States v.

Douglass, 476 F.2d 260, 262–64, 264 n.7 (5th Cir. 1973) (citing

Moylan with approval and rejecting defendant’s argument that he

did not “willfully” violate 26 U.S.C. § 7603 by refusing to file taxes

because he believes the IRS is unconstitutional and that voluntary

payment of taxes is treason, concluding that it is not a defense

that his act was done in protest of government policies).

Accordingly, because mistake of fact was not a valid defense in

this case, the district court did not abuse its discretion in declining

to give the requested jury instruction.

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20-14341 Opinion of the Court 39

III. Conclusion

Because Grady, Hennessy, and Trotta are not entitled to

relief on any of their claims, we affirm their convictions and

sentences.

AFFIRMED.