# Oral argument — United States v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A25321 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** June 26, 2014 ## Text 13-3177 U.S.A. v. Levine & Miller, et al. Argument now to exceed 30 minutes to be shared by the defendants. 30 minutes for the plaintiffs. Mr. Ridings, Mr. Obermeyer, and Mr. Welsman for the appellants. I believe Mr. Ridings will go first. Mr. Ridings, I represent Appellant Anna Miller. May it please the Court. This statute is not a regulation of an instrumentality of commerce. It's not a regulation of cars, or of scissors, or of battery-operated air clippers. This statute is also not a regulation of commerce itself, or of economic activity. Instead, this statute is a regulation of bias-motivated violence, which the Supreme Court for the last two decades has repeatedly held is within the explicit purview of the states and is outside of Congress's Commerce Clause authority. The statute is unconstitutional as applied here. The government argues that this is a category 2 case, but that cannot be so. If that were true, that would allow federal regulation of virtually any criminal conduct that occurs intrastate. This is inconsistent with the Supreme Court's decisions in Morrison, Lopez, and just recently this last month, in Bond. Your Honor, in that case, that race is a regulation of a market for a certain good. So in race, Your Honor, the Supreme Court held that Congress could regulate the intrastate possession of marijuana because it's part of a regulation of a larger market for the purchase and sale of marijuana. In this case, Your Honor, it's different than race because there's no intrastate market, or intrastate market, for bias-motivated violence. There's no market for weird head of other hair clippers. Your Honor, there is a market for hair clippers, but Your Honor, this regulation is a regulation of bias-motivated violence, not a regulation of hair clippers. If there were a regulation that talked about the length of hair clippers or how sharp the blades would be on hair clippers, Your Honor, I think that would fall under race. But this, Your Honor, is not a regulation of hair clippers, and as Congress's congressional findings show, this is a regulation of bias-motivated violence, as opposed to— I would have said Morrison is your best case. Do you think that Morrison preserves the possibility of creating interstate development? Morrison has these great black-vote principles for you, that the interstate commerce has to be an economic environment for employment, not simply an economic activity. I'm going to say the same thing about the United States Congress. Yes, Your Honor. But does he preserve this possibility of, you know, as long as he starts in Lopez, and he seems to still be preserved, or you have a statute that you're identifying with the matter we spoke about, your point that, well, yes, that's all fine, but we also have N-5 and Bonner, 1982, however you construe these statutes, they can't be the conclusion that the federal government has a national police power. Is that how you deal with it? Yes, Your Honor, I think there's two points to address there with Your Honor's point, number one, you're correct in the second point, is that we know, based on Morrison and Lopez and Bonner, that there is a line, and the government, excuse me, the Supreme Court has clearly said that violence, interstate violence, is an issue reserved to the states, and it's outside of Congress's authority. And to your point, Your Honor, about the jurisdictional element that the court has raised in Morrison, in Morrison and Lopez, when the court addresses the jurisdictional element, they use it as a proxy to determine whether or not there is a substantial effect on interstate commerce. So the jurisdictional element of the Tenth Circuit says it's not a talisman that wards off constitutional challenges. The jurisdictional element exists because we want to inquire as to whether the specific conduct affects interstate commerce, substantially affects interstate commerce, Your Honor. And the issue in this case with this jurisdictional element, and as the government interprets this jurisdictional element, the jurisdictional element covers virtually any conflict. The government's position is that if you're riding in a car, and once you get out, the government of Congress can regulate whatever you do simply because you've ridden in a car. Yes, Your Honor, that's true. Yes, that's true, Your Honor. My co-counsel's going to address it because of argument here in this case. But to your point about the protection of these particular classes, the government in this case argues that this is not, in this particular case as applied here, there is not a basis under, say, the Thirteenth Amendment for this. Is it part of the statute? Yes, Your Honor. This is strictly under the Commerce Clause. And so the question needs to be with respect to this one. I'm sorry, Your Honor, I have a question. With respect to this jurisdictional element, does the jurisdictional element ensure that there is a substantial effect on your state commerce? And, Your Honor, in this case, there is no question that this was not a, that commerce was not involved and there was no substantial effect on your state commerce involved here. Your Honor, I don't believe that's correct. And the reason, Your Honor, as I mentioned before with race, 922G, Your Honor, is that commerce has the authority under race to regulate the market for the possession of firearms, just as it has the right to regulate the market for possession of marijuana. So let's say there's something to your point. I'm not paying attention to U.S. Supreme Court opinions at all in this area, not until we realize that there's another option. There's no option A. What I think is a bold option B. I think it's probably an advice to suggest that we have a case to prove on, a part of that is to ensure that we're having progressive constructions of the statute to narrow and modify these constitutional risks. Yes, Your Honor. Is there a way to do that here? Or do you think it can't be done because the commission in Calgary has a problem? What's your take on that? I think, Your Honor, given the government's position, I don't think that's possible. The government's position is so broad that it captures all sorts of conduct. And, again, I think— Forgive me if I'm not getting the point. I'm worried that I might get blind. I understand the government's position. I think we can do with the possibility that federal courts can impose the new construction. In fact, it cuts the opposite direction. The broader their conception of the statute, the more irrationally involved that conception of the statute, the more appropriate I would believe that it would be for them to narrow the construction. I'm worried you didn't understand my question. Yes, Your Honor. And I'm sorry I didn't understand your question. I think, Your Honor, certainly that's appropriate. I just want to ask you to give me some examples of what you're going to do. It's hypothetical. There's going to be a trial. You're going to get just what you want. What kind of statute do you want? Is it a new trial? How could you save the statute, potentially? Your Honor, I think that in order for this statute to be saved, potentially, that the court would have to limit the application of the commerce clause such that the court and the jury can ensure that this is— I'm not saying that crime has nothing to do with interstate commerce. Well, that it substantially affects interstate commerce. Correct, Your Honor. And in this case, the trouble in this case, Your Honor, in our position, is that the crime doesn't affect interstate commerce. I'm reassured that that wasn't the crime. But this involves commerce provisions in the states. It involves people moving from community to community across state lines. No, Your Honor. This involves purely interstate activity within the state. It's the individual bishops who met. In this case, according to your side of the story, which was 10 years ago, including bishops from Pennsylvania. Yes, Your Honor. People moving to visit the Tri-State area where the Burgholz community is located, near Western India, near Pennsylvania. In this case, we end up at the very top of this issue. Yes, Your Honor. There was a bishops' council meeting that occurred outside of Ohio. But the Burgholz community, this issue, this business issue, all lived within Ohio. The victims were within Ohio. The point I brought on the table is that you said the only way to extrude this Constitution is to require it to be regulated. Something that hasn't impacted interstate commerce. You brought some more to the table. You said throughout the case, it's not economic activity. It's regulated by an interstate funder. It's regulated by patrons. It's not economic activity. Yes. Your Honor, certainly we believe Morrison is the touchstone that this Court has to return to in each of these cases. To look at these cases and look at the jurisdictional element, which is only a factor under Morrison and the United States v. Lopez, to determine whether or not there is a substantial effect on interstate commerce. And, Your Honor, I think Morrison goes right... There is a problem on that board. So, if you don't want to put your foot on the gas, they get in trial for everybody. Do you think we should still reach the applied challenges? Yes, Your Honor. I think it's appropriate to reach these... And that's why you're not an advisory opinion? No, Your Honor. I think that it's not an advisory opinion. I believe that it's a real issue that's live before the Court, in this case, as to whether or not the government has the authority to bring these prosecutions, and whether or not... But you get... As you said, you started us on the test of time. Yes, Your Honor. And then you said you don't see anything about an applied challenge that's engaging. You don't know that there's going to be a second prosecution. If there is a second prosecution, you don't know the evidence. You don't know the evidence that makes up the case. You don't know that you're in a second prosecution. Next question. If a... I just have a question. Once they came to the conviction, were you supposed to talk about rule on the applied challenge? Yes, Your Honor. I understand your point. But as we see the evidence that has come into this case, as applied to these particular defendants, our position is that we don't believe that there can be... You can't be open at one to five times. That's fair enough, Your Honor. Okay. Yes. All right. I'll give you my coat, Your Honor. Thank you, Your Honor. We urge reversal. Thank you. Good morning, Your Honor. Thank you. Before I'm going to be over-mired to the Federal Public Defender, I'm going to represent Senator Samuel Mullins. Your Honor, this case is about a district court that tailored the hate crime statute to fit the evidence series. There are two such errors in this trial. First, I'll address the erroneous standard of causation, and then I'd like to address the definition to that. The district court here refused to instruct that hateful motivation was the but-for cause of the instance of hate because, quote, the government can't prove it. It is the violent manifestation of hate and prejudice that is a crime under the Hate Crimes Act. And there is a causal connection of hate to violent acts that must exist because of, and that's followed by, the word collision for our purposes. Hate, according to the statute. The words in the title of the statute and the legislative history is replete with the requirement of hate being, or animus being, a required element. There are a lot of ways we can both be Christians and euthanized. I'm not a Protestant, and I don't mean I'm a Catholic. I don't hate Christians, but I don't hate their sect. You would bring that within the Amish community, people who are all Amish, and so hate is under the consent of the statute. Certainly different persons of different sects of religion. And not all one religion. Yes, certainly history is replete with examples of inter-sect hatred and acts of war and things of that nature. Ms. Obermeyer, you said that the trial judge was incurring because the prosecution couldn't prove a fault. Is that really an insufficiency of the evidence? Or was that just the judge's continuous statement? That was in the charge conference, the prior trial, when the jury instructions were being based on the evidence. Was there evidence that was not established by the court? The district court believed that the but-for statement was impossible to prove. And that was that. He believed it, but did he rule that way? He made that on the record. Now, the theory here is actually a little bit in the defense of the lawyer. But what's interesting to me is that he's saying the reason I don't want to be but-for is a consistency factor. And I'm very worried that that makes it all but impossible to be abstract and have conviction. So he's reasoning, well, shoot, we can't establish it. I don't think that counts as a ruling on the sufficiency of the evidence. I'm not here arguing the sufficiency of the evidence. No, no. I think it might have an impact on the sufficiency of the evidence. If that were the case, I had an understanding of the evidence. In my understanding, it was not his ruling that was the sufficiency of the evidence. It was more of what Your Honor stated about the difficulty of the high standard of a but-for foundation. And that's specifically what Scalia recently addressed in Birch in January with the United States Supreme Court. The government had made the argument in that case that the but-for standard was near impossible to reach. It was too high of a burden. And Scalia rejected that argument, saying it's used all the time in various federal case law, in information case law. It's a high standard, but it shouldn't be a high standard. Do you think that the court needs a soul? I'm not saying the court needs a soul. I think it can be. I think certainly there can be a soul. So let's get just what you want. That's an interesting factor, to say the but-for. It demonstrates the fact that the ruling is not accurate. I'll explain how you would explain the jury's opinion. I think that's something the court should definitely struggle with, is the exact wording to articulate the concept of but-for. And Mullen offered an example of it. We requested an example of it. We took from a case, State v. Tennyson, Iowa State, that was not encouraged. And it's very similar to an instruction given in Oregon in connection with our state, where the jury did not disperse in Mason. And that is that, this is the language of Mason, that the government must prove beyond reasonable doubt that the defendants would not have assaulted the victim in the absence of, or stated in another way, but-for the victim's religion. Here, in that case. So the instruction we asked for is that if they're partially motivated by the presence that someone has committed the act regardless of that, they cannot be able to use the but-for on their case. So it's kind of stated in the opposite. But those both state the same concept. And that's also the wording that was used by Henning, that discriminatory animals need a but-for on their case. I have a comment to make here. Something about the nature of these comments is that the court, on the other side, there's no way to look at what they did and not say that was not the case. Right. Yeah. The fact that the nature of the assault is very religion-specific. That it involves fear. Yeah. And I think that, to be honest, that is quite up in the middle of the society to challenge that harm. I think you can certainly have a disagreement for a religious reason, but that does not always rise to the level of a hate crime. Again, you have to have the animals be prejudiced and defiant. For example, two people get in an argument for whatever reason, and at the end of the argument, one of them rips the cloth off the other person. They're so upset, they rip the cloth off. They're tearing a religious symbol off of that person. That doesn't turn that act into a hate crime. That must be motivated by hatred, prejudice, or bias here. It's motivated by hatred, bias, or prejudice against a person's actual or perceived religion or religious belief. In fact, if you were to investigate the destruction of a religious system, that's probably not the best way to respond to that. Again, there are defendants in this case. Perhaps you have to defend that. Let's take the thing of policy. In theory, the destruction is wrong, and in theory, it should have been allowed to be in effect immediately. In fact, it was best to admit to policy in this case. But it was an important judge that would have given it a small suspicion here and a little bit across, but otherwise, the administration would not have agreed on it. Well, here, there were... That is essential to the trial, primarily what the motivation was behind each defendant. There was a lot of evidence as to the family disputes. Well, how did you hear about that? That's why I talked to Mr. Mullock this evening. There are defendants, some of whom have taken care of their own parents. In fact, Mr. Mullock was on the call this evening. Well, and that's another issue about conspiracy. Let's take a return to what they found was. I wasn't very happy to see him, but I was too happy to take his question. He had no involvement in the family issues. The custody matters, the parole matters, the child care matters. He was not involved in any of those with his family. Is that correct? It's all involved with his family. These were all his defendants' families. These were not his parents. These were not his children and his cousins. These were his grandchildren. His name goes with his sister. His family disputes in the first place. These were all his children or in-laws involved. It is one big family group. He also gave media interviews himself. And he did say he was told not to leave. Interviews were given after, I believe, the second week of October 4th, which would be before the last. I think here what is particularly compelling is that the jury deliberated for five days. He said whether the true context of that quote is accurate in meaning. It was debated at a time. Those were his words. And my point is, there has to be competing matters to create a completely different way. If the court of instruction should have given what evidence, there has to be a way. There is a considerable amount of weight here. And there is considerable reasonable doubt as to whether the error contributed to the verdict. Here they came back to a little on a different charge than the other charge, and they were out for five days of deliberation. The only one of the quotes was something about the doctor. I'm sorry? In other words, the only one of the quotes was anything. Right, right. What's your theory as to why they put it there? It's nearly impossible to tell. It could be because there was a lot of injury to David Wenger. There was, you know, a way to imagine the other victims. But it's part of it. It's impossible to tell. It's impossible to tell. It is impossible to tell. I think the factors of Mason, and Morgan, and Cheney, which was going on at the same time, which is what the court standard is telling us, both of the fact that those cases were the first case where you can tell that there was a lot of debate about what actually happened, and the jury in those cases acquitted him of any kind of charge under the correct standards of foundation, under the correct instruction, and it made them think that they could restart it. He was a great judge. He was a great judge. He came to the panel with jury's verdicts and hypothesized whether they could make a fine deduction in a certain way. And that's not the intention of the case. It's not going to be a fair judge. Right, it's impossible. It's impossible to get that right. The point of the argument is to answer Judge Starkey's question about the gender motivations, the possible motivations of your clients, other than the women. Is this the first case in the court? Yes, it is. It was James Camullo's primary defense at trial. He was not involved in these incidents. He was not part of the conspiracy. He did not coordinate these incidents. He did not come up with a plan. So, in that case, that's incorrect. What's the motivating evidence related to the court standard? Long-standing family disputes over matters of custody, gifts of a buddy that he gave that had to be returned, like a family act, as to weddings, weddings, financial, that his son-in-law had lost his house because his sister was on time for financial favors, universal human family disputes that were long-going on the court. How about the nature of the assaults themselves, cutting hair and cutting beards? Aren't those the nature of the assault itself, based upon the victims' religion? Otherwise, you've got nothing. What's the difference? Certainly, beards are a religious symbol of the Amish. But I think, again, you can have an argument for religious reasons, and it does not equate to that that's a hate crime. A hate crime is a very specific type of thought as a manifestation of hatred and prejudice. And what you're missing here is the element of animus. It wasn't required that if the court refused to instruct that animus or hatred or prejudice was required, the court wouldn't even use it for a hate crime on the verge of one. What if it's clear that the nature of the assault is a religious thing, based upon the victims' religion, but you also believe that we have, as well, that you have a disputed religious-based type of assault? Yes. You mean both? Yes, you do. I think you mean both. I think the legislative issue makes it clear, the House report makes it clear repeatedly that motivation, the sense of animus, hatred, and prejudice, that is a required element. And then you also have to have that causal connection of the hatred and prejudice to the violent act and the blood for waste. My argument is twofold, that first there's hatred and prejudice that must be required and that's completely omitted from the case. And second, that the standard of causation, which the Supreme Court has recently stated is encouraged. How about kidnapping? And kidnapping, the drug trial sentencing, particularly for stamps, because the only defendant sentenced over the 10 years, that's your maximum. That you don't know that, you have to have a finding of, that aggravated sexual abuse or other state kidnapping. And only the most egregious types of crimes should trigger that in Kansas. Under the HCDA, it was exclusion, not inclusion. And there was clarity and certainty in the criminal law that there needed to be one federal definition of kidnapping. And Congress didn't define kidnapping. I was talking about the Armed Career Criminal Act that is notoriously hard to reconcile. I think that's different from the hate crimes here for several reasons. One is the hate crimes statute, there's no indication that it's meant to incorporate a diverse set of state laws. And that's required. Before a district court can allow state laws to define a federal term, the statute must be clear that that's what's intended, such as the HCDA. But that's clearly intended, because 50 state laws have to be incorporated in there. Second, we're providing elements for a jury here of a federal crime. What the district court did is what federal courts cannot, and it created a new federal crime based on state law. And no one can ever use these laws in a civil rights context. And the district court here uses the Ohio definition because that's where the defendants are, and they wouldn't be unnoticed otherwise. This leads to a great moral goal. What should be done? The rule is two rules of statutory construction. The first is to apply a common law definition, and the second is the rule of lenity, particularly here where the penalties increase based on definitions. So the doctrine to apply a common law should apply, that's what all it asks for at trial. It has very clear, well-known definitions. It's old, but it's not arcane. And so we just, again, talked about the rule of lenity, going to the common, ordinary meaning of it. But we also gave it for all the choices, other than common law, the federal definition, all of those limit to the most serious crime. Okay. Thank you. Thank you. Thank you. Michael Rossman for Catherine Mellon. May it please the court. Federalism principles are just as important to RIFRA as they are to the Constitution. Because RIFRA doesn't require that any government have a compelling government. It requires that the federal government have a compelling government. And it must have a compelling government. In light of our constitutional structure and tradition, we place the states the primary regulators and enforcers of global criminal activity, a fact which the Supreme Court has repeatedly mentioned, indeed, twice just this past month. So the compelling interest that the government has, in this case, the federal government has, is just assisting the states. Because, and you can see this in the statute itself, the statute says that the states will still be responsible for prosecuting the vast majority of hate crimes. It says that our purpose here is just to assist the states. The government's brief on page 68 of 100 refers to the purpose of section 249 as supplementing state law. And this case is a perfect example of that. Another of the things, we're in state jail. You read pages 47 to 50 of the federal statute. But there are some protected groups, types of hate crimes in the federal statute that I don't think appear to have state laws, right? But all states have assault laws. That, I guess, is my larger point. Is that all of the hate crimes that we call hate crimes, we just call them assaults. They're all illegal under state law. State will prosecute them, whether they prosecute them as bias-motivated crimes or assaults, they will still prosecute them. And it is their primary duty, the Supreme Court's duty, that is the primary responsibility of the states to enforce local criminal activity. Can't enforce that. We wouldn't have a civil rights division if we didn't have the Department of Justice and the Department of Justice. No, I think we would have lots of, there's lots of things that the civil rights division can do as agents and defendants. Because so many states are not prosecuting or trying to prosecute them. And the U.S. Attorney's Office is one of the last to be prosecuted. I'll defer to you on that, Your Honor. I'm not aware of what the civil rights division does. These cases enforce a lot of federal laws relating to commercial activity, primarily employment and housing and things like that. But in this case, it doesn't impact on government officials. I don't think it does, Your Honor. And as we pointed out in our brief, we first heard about this request on the fourth occasion that the U.S. Attorney certified, made certification for civil protection. The first three made no mention of this request at all. And... Well, I think it does matter, actually, when the request should be requested. We don't have any evidence of when the request was made. All we have is the U.S. Attorney and the court tried mentioning the fact that a request was made. And I don't think that a request was made would be sufficient in and of itself. After all, the request was made because they didn't feel like prosecuting. But this actually adds information. The U.S. Attorney doesn't say it has no implications. Yes, it is, but I don't think that qualifies as a request. I'm telling you from my point of view, because the state made a request, but the state has made a request for any number of reasons. Because, to your point, the methodology can be quite overwhelming. Yes, it actually helps. That's what the U.S. Attorney's certificate did say, Mr. Brown. But again, only on the fourth time. And I do want to emphasize this point. These individuals were in state jail and the prosecution, in this case, they call up a whole series of state law enforcement agents, sheriffs, and people like that. They relied on statements made to these state law enforcement agents. They relied on recordings that were made from state jail. So this case demonstrates clearly that the state could have prosecuted, and were in the process of prosecuting them before the initial indictment came out. We see that all the time in our career criminal cases. We see this all the time in the federal department of career criminal cases where the arrest is for the state offense as the federal government contends as the penalties are more severe and perhaps even longer term of arrest for each other. This is not unusual for us to see. It's not unusual for you to see because RIFRA is normally not a typical case and the federal government doesn't need a compelling governmental interest to step in. I see my time is up, unless your honors have additional questions for me. Thank you, your honors. We'll hear from the government. May it please the court, Stephen Belovax for the United States. There are three points I want to start off by making that I believe frame many of the issues that this court has asked questions about. The first is that these were premeditated, repeated, religiously motivated assaults. And by religiously motivated to get to something the charges passed it down. They were assaults that were motivated by the way that the victims were practicing their Amish faith and the defendants believed that it wasn't the right way. As you said, it was all about religion That's point one. Point two is that for each and every attack the defendants hired or caused to be hired commercially hired drivers and cars that drove hours and hours across roads and interstates in Ohio for the specific purpose not incidentally, but for the specific purpose of facilitating the actual attack and then getting away from them before police could respond. On one occasion I'm answering a lot of emphasis on the cars To answer the broader questions I think Your Honor there were many, many assaults that occurred without the type of interstate commerce that were present in this case. Whether they're horse and buggies or whether they're borrowed room fights or whether they're neighbor fights or whether the government's failure to accomplish its cause of power Your Honor, I don't believe so because there are limiting factors but I would also point out that for each and every assault in this case, in addition to the instrumentality of the vehicle Let me put it this way. The government is always in trouble when they can't identify the limit. I don't know that it's all out there that you can't come back to interstate commerce. That might be the problem. Your Honor, I think that with respect to the as-implied challenge in this case which is what's before us to focus not just on the vehicles but on the weapons which as you pointed out in 922G is a repeated use of the interstate commerce plus power that comes before this court in 922G Yeah, yeah, yeah, that's it. That's it. That's a mark. Your Honor, if you look at if you look at the cases and the criminal statutes we have the murder for hire statute in the NHL. We've heard the travel act in the jury. We have House of 80 which is the criminal part of the crime statute. I think the bigger problem in this case is what's before us but just so you hear where I'm coming from on this point everyone goes to action because it's hard to get into the discreet area. It doesn't rest on a theory that we need international peace power. That's the punchline in the NHL. That's the punchline in the bar. It's the punchline in the court system. We haven't talked about a theory that we need international peace power. There are problems. In this case so if you look at what the Supreme Court said in Morrison that they identify that in talking about I agree with what you said but in each case as you pointed out they say that imposing the limiting principle will prove beyond a reasonable doubt to the unanimous jury of actual approach to Congress is a limiting principle in both cases and that's it. The court said that's what the theory leads to is a problem in constructing a statute Let's go back to the court I just had some bad luck with Barrage I don't think I can afford it I don't think so Barrage was a statute that involved different words it was a different statute and it was a different historical context the words in Barrage so our theory, just to be clear under this whole question the because of argument is that first of all, under any standard either the but-for standard or the substantial motivated standard that there would be no option no reasonable option for the jury to have convicted in this case that's number one. Right It was different players there was only one in St. Thomas There was limited modeling Yes There were overlapping questions So our theory is first of all I don't want you to plop down in the harm's error argument because I don't think that's the most important argument I just want to hear what you have to say Yes, go ahead It would be a lot of time for an hour And you do concede it's beyond a reasonable doubt Of course You just said it would not be reasonable No, I just talked about it being harm's error beyond reason, that's correct Okay, there's a difference I understand I understand I understand I understand And we could go through the benefit of that Let me do a little of that No, but I assume that the answer to the first question Why is it beyond a reasonable doubt? That seems very counterintuitive to me It's just a very hard issue And it's a serious issue The point is, it's an agreement And now we're talking about what comes out is related to people in an agreement And so I take it implicitly No, no, I don't necessarily What I want to do is to get to the I don't, in this case It's very hard to sort of draw the distinction Because there was so much talk amongst all the defendants Repeatedly over time About the motivation And if you look I don't, I don't Respectfully, I don't know that I do But I think we're right The theory judged is that each and every defendant Actually possessed The requisite motivation But that Even if the court Decided that it was all or nothing That we would win Because they certainly, all this group Also agreed to And it was proven beyond a reasonable doubt And it was harmless Beyond a reasonable doubt If the court is going to run But also I want to point out to the court That we believe the jury should be looking at this for frame error as well Let me tee up this question for you A very concrete question Let's say at 15 What do you think it's a harmful error Let's say we take the mastermind Which in some judgment is the same as ours And maybe it's harmless Is that clear? I'm trying to figure out Is that possible To uphold it as to one Not at 15 When it was all I think your honor that guilt is individual I mean I think the fundamental point is guilt is individual And I would have to concede that We have to, each and every defendant And we have deeper deconstruction here in this case We have aiding and abetting, we have conspiracy We have numerous different theories That a jury could get to the point Of individual liability, but in the end I think I would say to the court That guilt does have to be individual For each defendant And he's making a verdict A verdict form That's correct I thought about this Daniel Mollet When they did their arguments His counsel said We rely on you We're relying on all of this There was lots of Some of the defendants were talking about more universal stuff Than some of the others This person knows all of this Because he's involved in all of this And the jury would have to evaluate the evidence Evaluate the argument And decide for Samuel Mollet whether it believes That the government can bend its burden Under various different theories Which could include all the different things I mentioned Aiding and abetting, conspiracy I'm struggling with the harm Separated by the person Conspiracy Can I say I understand that we're struggling But look at what we had here We had not just Mr. Mollet's statements Routine statements About the motivation Not just the inherent nature Of each and every Religious But we had Witnesses who came in Defendant Mollet's son His sister Who came in and talked about months Of meetings and discussions in the compound Which talked about Amish hypocrites And targeted individual victims I think there's a response to that That's not my point I just think there's other evidence Well even the other evidence That the defendants raised in the trial So-called family disputes The problem with that Is if you look below the surface On the family disputes They're linked to the religious motive So I'd love to get a psychologist Who's involved in this question I'd love to see a psychologist From both directions I'd love to see a psychologist Say no, I don't know Your Honor The important part is The list of these arguments They did not, Your Honor Judge Polster correctly Instructed on the law in this case And I'll explain why First, the history The words because of Which are not the same words resulting from Are a motivation factor Not like in Barrage, a causation factor That's number one Number two The process resulting from The heroin But whether you can prove a court And say that the reason for the death Was medically Resulting from Death resulting Death resulting Death resulting Right, we can go forward In a lot of these overdose cases The guy's on four or five different things And somebody can't say, you know, it was the pills that did it So that's a very different thing Than that's number one Number two, there's other different words Number two, that Congress When it enacted this statute And this is all a question of statutory instruction Everybody agrees Congress would do it either way When the Congress enacted this particular statute It was not writing out a blank slate It was specifically trying to Expand the scope of The existing hate crimes statutes In the country, there are two of them That have been used for decades, and only two basically 18th United States Code Section 245 And 42nd United States Code Section 3631 That's for housing cases To help them move in and the process for amending the law Those are the two statutes And it took The exact, now we're not saying That Congress tried to expand The scope of motivation by Enacting 249 But the general Notion was Congress was trying to expand The scope of federal jurisdiction for hate crimes It expanded some elements by Eliminating some jurisdictional requirements And then it lifted verbatim The exact same Motivation language from 245 And 3631 and put it into 249, or it's because of And when it did that The unquestioned Law that had been applied for Those two statutes, including twice In this circuit In both In both McGee and Evans and Johns And Bledsoe, across the country Was the idea that substantial Or significant motivating factor Was the task, and the statutory Construction principle is that Congress is Presumed to know the law, and I'm going to point out in this case That's not just a hollow presumption This was a statute that was before Congress The record in our brief shows For a decade or over This was a statute that people understood That words were important, they fought over This was written on the back of a legal pad and thrown Out on an appropriations bill And Congress facilitated Including, in fact, It was a very extreme Object to require a lot more And that was said And of course gross This is a U.S. Supreme Court case Because it requires about four So I'm extremely aggrieved that the rule of Legally is working I don't know if we understand the feeling But I just find it Intimidating to say we're doing But more in civil settings Significant factors, very strangely Rejected in civil settings in this court And now in the Ministry of Criminal Justice, it's a lie That's what we all agree on, the ones about The ones about Commander Rees-Muldoon One requires unanimous Verdict of the jury And Congress But we don't think No, but we We have to prove significant That Commander Rees-Muldoon is a higher burden And I agree But I don't understand the theory The theory is that because there's so many Other burdens on the government In prosecuting a crime, that it is Through statute to not look like a burden And so, I don't know The theory is that In the entire United States The closest two statutes To the one that we're construing now Have been uniformly Interpreted to be exactly What it's supposed to hold for the jury And taking less analogous statutes Statutes that deal with complex Burdens on the state We have more There's one higher case And I don't think that that's at all persuasive With respect to Congress's Understanding of the language It's much more cogent and persuasive It's not that It's Barrage Barrage Barrage had a lot of Discussion and Barrage did not rely On the Iowa case It's cited The Iowa case They did cite that case But clearly The Supreme Court did not rely In interpreting Congress's act The Substance Abuse Act did not Rely on a hate crime statute And I think, had that been the only case That in that case the appellation had gone up to the Supreme Court I think They would not have gotten the result There was other cases And I think in this case, as a head judge It really was, I mean this has been As somebody who's prosecuted hate crimes For many, many years These were the analogous statutes This was the law In this circuit, this was the law in this circuit The Penn Circuit And the idea that in the context Of an effort To expand the law That Congress would take the exact same words But then sort of Substantially Narrow the law makes no sense It just makes no sense In the government's view, your honor, respectfully And You know, to find Otherwise, I think It takes the rule of lenity Which is sort of a rule when there's ambiguity And makes it into a rule that says Congress sort of Has to see, doesn't have the authority There's a very ambiguity as to whether Because that was in Part 4 Why is it that I want to have a statement If people would have thought it was clear I would have said because that was in Part 4 So I'll grant you that time But not In Part 4 You're saying that that's not the case Not at this time, Mr. Honor It's just not When you have McGee, when you have Evans When you have Wetzel, when you have Johnson When you have this, if that's set up as an area of law Then you have the exact same order And not imported from another title in the tote But imported from the statute If you look at the tote book, it's right above it And so I just don't think, your honor And I want to point out, again That I just want to point out that this Discussion that we're having That they do have With the Discussion that Judge Polster never had the benefit of having In this case Because the push Behind the defendant's objection below Had to do with prejudice and bias But they did I understand They objected to the jury's instruction They objected to the proposed jury instruction That used language Quote, that the defendant would not have acted Absent the defendant's prejudice Against such religion That's pretty close to Part 4 Pretty close It takes two concepts Which is the concept of They objected To this particular instruction They objected They objected At the pre-trial conference They objected at the end of The jury's recommendation I'm concerned about Harmlessness As to Samuel Now Senior Tell me Tell me again Why Not the Harmless Some categories of evidence Make it so that it would be harmless First, the defendant's own Repeated statements Okay, but they're not Against him At the end of the day This is what I'm going to take through You know, we know what we did And why we did it This was all about religion All about religion Number two, religion is In the mix Because of the actual Or some religion Which is different than saying It is about religion in general It's about them challenging My authority over the community It's about them going to The conference of bishops And getting my shunning positions Overruled Well that means, to me That it's not necessarily based Upon their religious beliefs But their actions of using their Appellate rights Under the religion doctrine And that he's motivated For the exercise Of their rights, not Their religion, not their religious beliefs Their religious practices And that's why I started with that one And that would clearly be motivated by That would clearly be because of their religion And the statute So the idea The fact that they The fact that Raymond Parsh By the way, the defendants Didn't know The evidence shows that he doesn't even know who they are We're from Burlesque We're here about the shunning The idea is that because he allowed people To worship in his community He allowed, you know, the freedom To worship how you wish, with whom you wish That he allowed people to do that Was the motivating Factor behind the assault On him So it's I get that this is very tricky I mean it's a very hard case And it's a very hard statute to implement But there's also Something really hard I mean, people Don't take challenges to them I mean, and that To me, when they go And it turns on Reading through the bible That means everything And then you add A lot of things A lot of things I can't imagine Not letting someone argue That's the jury, that's what I'm saying Is this kind of question That should have been said by the court And it was, of course, the right question Which is really odd All of these headlines Drawing, ranting, and faces And then a lot of this That you don't need to argue the jury They want acquittal It's really odd Your honor, I don't want to guess What's behind the acquittal But I would point out that there was Significant argument of bodily injury On that account Which was different than these times So I don't want to read into it But I also don't want others to read into it I don't want to read into the assault Or the jury But I would point out In addition to this public statement To get back to Judge Griffin's question There were jail calls By the way, these are jail calls In the midst of the content Because one thing that happened in this case Which accounts to the state The state arrested five individuals The assault kept happening The attacks kept happening Which is one of the things that caused the FBI To prioritize the case Jail calls in which they're discussing I think the word is It's a religious degrading That's a statement made between the co-conspirators There are There are people who come in From the community Who live in the community who were not charged Who talk about the discussions in this case Of these individuals being identified as Amish hypocrites In other words, Judge The way they're practicing their Amish faith Just isn't plain good enough For the defendant in this case There are The fact that they allowed Mr. Mullins son who was shunned To worship in their community Was a problem The fact that they That they wouldn't honor his shunning But instead allowed the individuals Who he threw out of the community To worship with That's just the counsel of Bishop's decision It's the follow on to it Which is that that allows These individuals to let people Come to the community He doesn't like the fact that The counsel of Bishop is overruled It's like Supreme Court Just like Supreme Court overruled us We don't get out of court That happens And if you went to the Supreme Court After a reversal It's not a disagreement over religion It's a disagreement Over the judgment That's been overruled by the counsel In religion That's above him And he disputes the attack On his authority How dare you challenge my authority However this is allowed in religion And he's a part of it And everybody's part I don't see Well I can see how there's argument That it's not because of the defendant's actual Religion But rather because it was a challenge To his authority Which I say is different Well there are No I don't agree It's about the victims The way they're practicing the religion And that idea of the The shunnings Is one threat but there's others There's the idea that That individuals are Are You know not practicing The Amish faith in the right way There's a difference between the The original Mullet Sr. Is not motivated by the challenge To his authority As opposed to motivated Because of the way they're practicing the religion Can we say that beyond the reasonable doubt That it's because of the way They're practicing the religion As opposed to because of the challenge To his authority It's not a reasonable inference That he's motivated by the challenge To his authority No it's not It's not Because The reality is that The challenge Resounds I understand the question But it all Boils down to And is motivated by A religious A criticism of the way the victims Are practicing their religion Now whether that's a byproduct of that difference Is that you're not listening to me Or whether the byproduct of that practice Is that you're wearing a scarf instead of a A bonnet instead of a scarf Or whether the byproduct of that practice is That You were doing some other religious practice You're allowed to take against you in church But you shouldn't be letting it against you I mean these are fundamental Ideas about practice of religion And I think the amicus reading Is that to get into The weeds of sort of Worrying about the defendant's Religious view is a very dangerous act to go on It's the victim's religious practices Which are the key to this case And were the key to the defendant's motivation And there's no other argument That Is a fair, reasonable inference From the evidence in this case, your honor Parents are not going to be against kids Seriously Parents are not going to be against kids That's what my student said Not in the next year Because your honor If your parents don't Put through your money Or if your parents don't write a house mortgage You don't go and take away The single most important religious symbol As a degrading And this isn't a case about fully offering It's actually a special occasion If your parents don't have to come on So you have a very big Family The son comes out And then again As a Big counselor We're going to convert you back That's what I said The son's really upset He just said I've done two levels I've said He thinks it's wrong That they're letting their faith Decide to bring someone like him And he also just can't believe his parents have to come Because there's parents Not because God made his parents Or because parents are at least faithful So that He just sits on his arms He knows Of course There's not That doesn't Go to the jury It's very complicated Of course It's in the midst of A jury verdict But I also think It's no brainer But if I talk to my parents Of course I'm not going to Relate to the point We believe But I think that Situation is far different Because it wasn't one Incident, it wasn't one parent This is a series of five incidents That occur over a period of two months It is an organized, repeated Religiously motivated series And it's just not The same as what you're describing And the nature Of the cumulative weight of the repeated Attacks, the similarity between The attacks, the religious Brandings that occur in the Attacks, the statements that are made During the attacks, you know, Andy Hartford Is being held down, and they're trying to decide Whether to do his gear too, they just didn't stand The question is if that's the thing You can ask right before, you're a preacher too Aren't you? And the brother, by the way, doesn't get his Who's also being held down, doesn't get his gear changed So there's example after Example in this case That support the idea that this was, as the defendant Said, all about religion In this case, Judge And I just don't think that taking the example That you gave, or the person who Rips off the cross in the argument In anger, is in any way analogous To the actual evidence in this case And as you correctly point out, it's really the promissory note That is necessarily Intensely focused on the evidence In this case, as opposed to Other cases that might be similar So, if that individual, if you describe Judge, instead of just Doing that to his parents Trying to find Christian people all over the city And going into their house At night, and dragging them Across the room, and holding them down And saying, you're a Christian And branding them That would be far more like this case I would say that's a far easier case I wouldn't say it's quite as easy as this Because they're not paying them It's everything you understand No, they're not, Judge, the hard covers aren't related No, the hard covers aren't Most of the items, and most of the accounts Are related, no Miller Assault is the only assault Versus assault, and that's where they're all happening That goes back to what you just said About earlier, that individual By visiting him, he said there's 16 Pennies in the state, and you look at Assault by assault, then maybe you want to change More, or you have to address it more Count one is you only Count, I believe, I don't want to misspeak There's a lot of defendants, there's a lot going on It's the only count Where every person Is related to The victims in the assaults Count one, I mean, count, I'm sorry, the first Subject, count two Count four and five, count four and five No, but all five Are related charges to the authority They relate to Some, more than us Certainly that's a theme running Throughout Yes, no, no, I It's about Religious differences, and look Religious differences are, of course, at the core Of our national values, and I get that But the way you resolve religious Differences, and what this case is about Is you don't break into people's houses At 10.30 at night, grab them by the beard Exactly How about the kidnapping? What do you want to say about that? With respect to the kidnapping The first thing I'd like to say is that In terms of the statute of obstruction Because of the sentences that he actually gave They were all well under The statutory maximum Regardless of what Kidnapping means, enhancing the plight Samuels is the only one over 10 years But if you add up the statutory maximum It's 70 years So that's the first thing I just want to point out And the second thing Is that, again, Judge Bolster was correct He looked at Soto Sanchez This circuit's case Where the Sixth Circuit laid out Collective cases from all 50 states And laid out what the generic definition Modern definition of kidnapping was He used the approach of the Supreme Court Dictates in Taylor, which is to use The modern generic definition Not the Common law definition And he looked at And he looked at the case Gidley Which was in the context of a 242 case He was right No, there's one Modern generic definition of kidnapping Judge Bolster instructed the jury to write this He didn't look at it No, he He pointed out that the Ohio definition Was in accord with the modern Generic definition I'm also concerned about 404B Under access In terms of the Sex of a decennial Public senior with his daughter And I think that's a very troubling Issue I don't see Much Permanent value To show that he has Control over the community But in my view It's undisputed that he has Overwhelming control over the community So I don't see the need For that evidence to come in In order to its purpose However, I see the prejudicial value Of the coercive sex Of the daughter-in-law to be overwhelming And prejudicial And therefore under the penalty test I think that evidence should have been Excluded I want to caution you If we do have a free trial I strongly urge you Not to bring it Because I think it's If it's not a reversible error It's often close to being a reversible error Do you want to address that? I tell you right now I'm on the fence on that issue as well And I'm glad you're asking the question Because I actually feel That we're very tolerant on this issue This was admitted Just to kick through the four pillars I won't go through them Because I think you have questions about several It was for a proper purpose It was very limited testimony It was very damaging testimony It was a very prejudicial testimony It was There was immediate limiting instructions given And instructions given at the end And, this is the fourth point There was a mixed verdict in this case For Defendant Mullen Defendant Mullen was acquitted Of two separate counts in this case One of them was not just an instruction And an axe count Which I think elides your concern That somehow the jury was overwhelmed This is a jury that was able To listen to the limiting instruction That the judge gave And judge you said that this was something Which was sort of his power and authority Was undisputed Not only, it was actively disputed It's still being disputed The single most Arguing about defense Defendant Samuel Mullen His primary defense Was that while he maybe knew about the attacks You know It's not like the attacks Is different than his control in general But he's saying he didn't control These things He says he didn't control the conspiracy Is there any doubt That he is in control of this Omni-community Our theory was that he controlled Everything that happened That was our theory But it was contested His theory was These are people off doing these things But he can see that he has General control over the whole community He is the Authority figure And I don't see anybody contesting that I see that as the probative value The probative purpose That you have to admit this evidence But I don't really see that As being contested Respectfully Judge I think you're slicing the defense too thin The defense was that he didn't control What these people did And this evidence showed that he did control The conspiracy because he had sex With his daughter No because Judge And this wasn't just having sex With his daughter The way the testimony came in Was that this wasn't some secret Illicit affair She said no and other Co-conspirators in the case Came to her and said You need to listen to You have to obey And it went directly to The contested issue in his defense Which was That look I wasn't present And therefore because I wasn't present I didn't somehow Encourage counsel To control The events in that case Our theory was that the jury was entitled To hear the weight of the evidence That showed the extent The nature And the iron fisted control That defendant Mullet had over that community judge And so Thank you Thank you so much There's a lot of people speaking Broadly I appreciate it Thank you I appreciate it Thank you I appreciate it Thank you Thank you Thank you Okay Thank you Thank you There's a lot of points to get to in a short amount of time I'm not sure The separate conviction is not challenged Are we on that? The non hate crimes Yeah They were generally challenged in rule 29 They're not specifically addressed in our Problem Not challenged Because we're not We're not bringing them to you Correct It's not clear The district court imposed a 15 year sentence In this case He did not specify This is our sentencing argument He did not specify what the sentence was For the counts that don't carry But that's over the statutory maximum Correct It wasn't clarified In the transcript or the judgment I think the debate here With the government Illustrates that the reason without standards Has not been met And the fact that the jury Did it with Showed that this issue does need to go back To the jury And the correct standard of causation Which is what court standards And I want to address the government's argument That the law here is well settled As to section 245 That exact argument Was rejected by the court of Jenkins Which created a split In the circuit between the Jenkins instructions And the hate crimes case And the Mullen instructions The Jenkins court issued an opinion That we cite in our brief That very eloquently laid out the reason why And the argument said Well, it's section 245 It rejected that argument And Jenkins also didn't have the benefit of Barrage And it's come out since then Citing with Jenkins As to much more argument That's one point I wanted to make The other point is that The Arnold-Harris standard goes to all The consents The government's theory here Is that they were tied together And that there is a security charge And more liability primarily Less rests on security Theory of Peterson liability So if it's harmless If it's harmful to one, it's harmless to all And it should go back to the trial And if I can I'm unaware I was in the process of Conspiracy To not upgrade That policy As I said I'm not aware of that It's an embarrassing situation Individual assault I'm not aware of that Well, clearly So, I can't run into conspiracy And we can't suspect each other It's different It's a separate thing That's certainly Correct But I'm not clear If you're actually going to The rest of the county For all persons in particular And all of you not directly participating In the rest of the county He was brought into the county under a Defending theory Correct And if I can address The 404B Argument against the presidential Act, we agree with the court That there was no Determined purpose to bring it in The purpose was to show That there was control of the community In general As opposed to His control of the conspiracy But his control in general I mean, was that No, he did not It was established that he Was in control of the community As far as people believe It was part of his criminal The debate itself Whether he directed or Was involved in the conspiracy The government admitted It did not prove It was very different Years ago Involving people who were not Involved at all They were no longer in the community Victims In this case The victims Completely unrelated So We also raised a bunch Of additional issues that we Taken alone or together Weren't released And the defendants in this case The federal jurisdiction here It's unprecedented, it shouldn't be What amounts to a state criminal matter And we bring that to the court On jurisdictional basis And second, to revamp the case For retrial for all of the reasons set forth I don't think I'm trying to make sure I've answered the question But I'm not even getting close to that People who practice the honest faith Find it offensive To have their religion described As being a political crime And I think the obvious Is that the secular and the religious Are combined When they say the effect That captures the secular, they say no I would say good When you're in the honest religion Everything is huge Everything you do Constantly, every day Is for a religious reason There's no separation It certainly can Everything Gender interaction, everything It's a very orthodox community Thank you very much --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A25321. Public record. Not legal advice.