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United States v. Kelly

United States District Court, S.D. Georgia, Brunswick Division

October 11, 2019

UNITED STATES OF AMERICA,
v.
STEPHEN MICHAEL KELLY, et al.,

          ORDER

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE.

         Defendants have been charged with: conspiracy, in violation of 18 U.S.C. § 371; destruction of property on a naval installation, in violation of 18 U.S.C. § 1363; depredation of government property, in violation of 18 U.S.C. § 1361; and trespass, in violation of 18 U.S.C. § 1382. Doc. 1. This case is set for jury selection and trial beginning on October 21, 2019. Doc. 509. In preparation for that trial, Defendants and the Government have filed a number of pretrial Motions, Notices, and supporting Memoranda. The Court addresses these matters in turn, and, for the reasons set forth below, the Court:

         1. SUSTAINS the Government's Objection, doc. 613, to Defendants' Notices of Intent to Raise the Defense of Religious Freedom Restoration Act, docs. 532, 546, 560, 551, 570, 581, 592;

         2. DENIES Defendants' Motions in Limine on the Application of the Religious Freedom Restoration Act to the Statutory Elements of the Charges, docs. 540, 541, 556, 566, 572, 588, 584;

         3. SUSTAINS the Government's Objection, doc. 613, to Defendants' Notices of Intent to Raise First Amendment Defenses, docs. 536, 539, 555, 565, 568, 579, 587;

         4. GRANTS in part the Government's Motion in Limine, doc. 530, concerning Defendants' justification or necessity defense and SUSTAINS the Government's Objection, doc. 613, to Defendants' Notices of Intent to Raise Defense of Necessity; docs. 542, 544, 557, 561, 573, 583, 589;

         5. DENIES in part the Government's Motion in Limine, doc. 530, concerning the exclusion of evidence under Rule 401;

         6. SUSTAINS the Government's Objection to Defendants' Notices of Intent to Raise Defenses Under International Law and that Nuclear Weapons are Illegal Under U.S. Law as War Crimes and/or Genocide, docs. 543, 545, 558, 562, 571, 580, 590; 547, 548, 550, 559, 575, 582, 591; and

         7. DENIES Defendants' Motions to Take Judicial Notice of Certain Facts, docs. 534, 538, 554, 563, 569, 578, 586.

         DISCUSSION

         I. Application of the Religious Freedom Restoration Act of 1993 at Trial

         Earlier in this case, Defendants filed motions to dismiss because, Defendants argued, the prosecution in this case violated Defendants' rights to religious exercise, as protected by the Religious Freedom Restoration Act of 1993 (“RFRA”). Docs. 87, 102, 118, 122, 141, 158, 171. The Court conducted an extensive, two-day evidentiary hearing on Defendants' motions to dismiss, during which each Defendant testified, Defendants called expert witnesses, the Government presented its own witnesses, and the parties were permitted to present argument in support of their positions. Following that hearing, the undersigned issued a Report, recommending that the Court deny Defendants' motions to dismiss. Doc. 411. Defendants filed objections to the Report and Recommendation, docs. 429, 432, 433, 437, 498, 499, 502, and the Court conducted an additional hearing on the matter. Doc. 480. After conducting a de novo review of the record, the Court overruled Defendants' objections and denied Defendants' motions to dismiss. Doc. 504. The Court concluded that, although Defendants established the prima facie elements of a RFRA defense, the Government “has satisfied its burden under RFRA of showing that it has a compelling interest in applying the laws at issue to Defendants for Defendants' actions at Kings Bay on April 4-5, 2018, and that applying the laws at issue to Defendants for those actions is the least restrictive means of furthering its compelling interests.” Id. at 18.[1]

         Defendants have now filed several Notices and Motions in Limine concerning the applicability of RFRA at trial.[2] In the RFRA Notices, Defendants state they intend to assert an affirmative defense under RFRA at trial. In the RFRA Motions in Limine, Defendants argue that RFRA “must inform the Court's interpretation of certain statutory elements of the charges, as well as the Court's rulings on admissibility of evidence relevant to those elements.” E.g., Doc. 540 at 1. The Government has filed Objections to the RFRA Notices and Responses in Opposition to the RFRA Motions in Limine. Doc. 613.

         A. Defendants' RFRA Notices

         In the RFRA Notices, Defendants contend the Court must permit them to present a RFRA defense at trial, despite the denial of their motions to dismiss based on the same defense. Defendants rely on the statement in RFRA that a person “may assert [a violation of RFRA] as a claim or defense in a judicial proceeding . . . .” 42 U.S.C. § 2000bb-1(c). Defendants argue the Court has already found that they have established the prima facie elements of a RFRA defense, and this finding supports allowing Defendants to present the RFRA defense at trial. Defendants argue the ability to present a RFRA defense turns on whether “RFRA is an affirmative defense on the merits, to be decided by the jury (like the defenses of necessity or self-defense), or whether RFRA is the type of defense that can result in dismissal of an indictment regardless of the merits (like the defense of outrageous government conduct).” E.g., Doc. 532 at 3. Defendants point to decisions that characterize RFRA as an affirmative defense and contend that this designation means a RFRA defense must be presented to the jury. Defendants further contend that the elements of the Government's burden under RFRA-demonstrating a compelling interest in the law at issue and that the Government's actions are the least restrictive means of furthering that interest-require an individualized assessment of each Defendant's conduct and, therefore, the jury must to evaluate these issues in light of each Defendant's conduct on April 4-5, 2018. Id. at 6. Defendants point to civil cases in the Eleventh Circuit that have found that summary judgment was not appropriate on RFRA issues where genuine disputes of material facts existed, which, Defendants argue, shows that RFRA is a factual inquiry that must be decided by the jury.

         In its Response, the Government argues the Court has already concluded that it has a compelling interest in the safety of individuals at Kings Bay Naval Submarine Base, the security of the assets housed there, and the smooth operation of the base, and that the application of the laws at issue in this case to Defendants is the least restrictive means of furthering the Government's compelling interests. Doc. 613 at 3-4 (citing Doc. 504, the Court's Order on Defendants' Motions to Dismiss). At base, the Government argues it has already met its burden as required under RFRA, and, therefore, Defendants are foreclosed from relitigating the issue before the jury at trial.

         Although there is no Eleventh Circuit Court of Appeals authority directly on point, the Eighth Circuit Court of Appeals addressed this issue in United States v. Anderson, 854 F.3d 1033 (8th Cir. 2017). In Anderson, the defendant was charged with possession with intent to distribute heroin and conspiracy to distribute heroin. The defendant moved to dismiss the charges under RFRA, arguing that his distribution of heroin was an exercise of his sincerely held religious beliefs. Id. at 1034. The district court assumed the defendant's beliefs were sincerely held and substantially burdened for the purposes of the motion, but also held that the Government had demonstrated a compelling interest and least restrictive means. Based on these conclusions, the court prevented the defendant from presenting the RFRA defense at trial. Id. at 1035. The Eighth Circuit affirmed the district court's conclusions regarding the Government's compelling interest and least restrictive means and affirmed the decision to prohibit the defendant from presenting a RFRA defense a trial. The Eighth Circuit noted the compelling governmental interest and least restrictive means inquiries under RFRA are “questions of law, ” and once those issues were resolved by the district court, it was proper to prohibit the defendant from relitigating the issues before the jury. Id. at 1035-37. Similarly, the Eleventh Circuit has concluded that whether the RFRA applies is a “pure question of law” and that “determination of pure questions of law in criminal cases are not the province of the jury.” United States v. Duncan, 356 Fed.Appx. 250 (11th Cir. 2009) (affirming trial court's decision to not provide jury charge on RFRA);[3] see also United States v. Lepp, 446 Fed.Appx. 44, 46 (9th Cir. 2011) (affirming denial of motion in limine seeking to present RFRA defense at trial where trial court determined the Government had satisfied the compelling interest and least restrictive means inquiries).

         Here, the Court has already fully considered Defendants' RFRA arguments in the course of ruling on Defendants' motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means. Doc. 504. Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial. For this reason alone, the Court would sustain the Government's objections to Defendants' RFRA Notices and prohibit Defendants from presenting a RFRA defense at trial.

         Despite the authority cited above, Defendants argue that all aspects of the RFRA defense-including the Government's burden of demonstrating a compelling interest and least restrictive means inquiries-are factual issues that must be resolved by a jury. In support of this position, Defendants point to cases where courts determined that genuine issues of fact prevented the summary judgment in a civil RFRA suit. E.g., Doc. 532 at 7-8 (citing Davila v. Gladden, 777 F.3d 1198, 1205-07 (11th Cir. 2015), and Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525 (11th Cir. 2013)). These cases are distinguishable, and the Eleventh Circuit has confirmed that the applicability of RFRA in a criminal case is a pure question of law. But even if the compelling interest and least restrictive means inquiries were factual issues to ultimately be decided by the jury, the Court would still prohibit Defendants from presenting a RFRA defense at trial.

         While it is correct that a criminal defendant has the right to have a jury resolve disputed factual issues, where the evidence, even if believed, does not establish all of the elements of a defense, the trial judge need not submit the defense to the jury. United States v. Foster, 153 Fed.Appx. 674, 676 (11th Cir. 2005) (holding that a defendant bears the initial burden to offer evidence of each of the elements of an affirmative defense and, if that burden of production is not met, defendant is not entitled to a charge on that affirmative defense or to present that defense to the jury); United States v. Fernandez, 837 F.2d 1031, 1035 (11th Cir. 1988) (“A defendant is entitled to have the court instruct the jury on his defense theory only if that theory has an evidentiary foundation and the requested instruction presents a cognizable legal defense.”); United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985) (affirming trial judge's exclusion of necessity defense at trial where nuclear protestor charged with violating 18 U.S.C. §§ 1361 and 1382 attempted to introduce evidence of political and religious motivations, but failed to carry initial burden on essential elements of defense). Whether a defendant has presented sufficient evidence to support the elements of a defense is a question of law, to be decided by the court, not the jury. United States v. Calderon, 127 F.3d 1314, 1329 (11th Cir. 1997) (“The issue of whether the defense produced sufficient evidence to sustain a particular instruction such as a multiple conspiracy instruction, is generally a question of law subject to de novo review.”).

         Even if the compelling interest and least restrictive means inquiries were factual inquiries to be resolved by the jury-and they are not-the Court would still be tasked with determining if Defendants have produced sufficient evidence to submit the RFRA defense to the jury. In requesting to submit the RFRA defense to the jury now, Defendants rely on the same evidence presented during the evidentiary hearing held on Defendants' motions to dismiss under RFRA. The Court considered all of that evidence and determined the Government has shown a compelling interest and least restrictive means. Considering that evidence again, even in a light most favorable to the Defendants, results is the same conclusion: the Government has shown a compelling interest and least restrictive means. Defendants, therefore, have not presented sufficient evidence to support the elements of a RFRA defense at trial.

         Finally, in their RFRA Notices, Defendants rely on United States v. Warren, No. CR-18-00223-001, 2018 WL 4403753 (D. Ariz. 2018), for their contention that they must be allowed to present a RFRA defense at trial, but that case does not support their position. In Warren, the defendant was charged with unlawfully harboring illegal aliens in violation of 8 U.S.C. § 1324. The defendant moved to dismiss the charges under RFRA. 2018 WL 4403753, at *2. The court conducted an evidentiary hearing related to the motion and, ultimately, denied defendant's motion. Id. at *5. But unlike this case, the court in Warren denied the motion to dismiss because of unresolved questions of fact, and those facts went directly to the issue of the defendant's guilt on the underlying offense (e.g., whether certain evidence was attributable to defendant, whether the illegal aliens were in distress, etc.). Id.

         In this case, the Court found that the Government demonstrated a compelling interest and that it was utilizing the least restrictive means, which has no bearing on Defendants' guilt or innocence on the underlying offenses. The last paragraph in Warren highlights another critical distinction. In Warren, the defendant had only moved for dismissal and had not, at the time of the order, sought to present RFRA as an affirmative defense at trial. Id. The court noted this and reiterated the threshold showing the defendant would need to make in order to present the defense at trial, explaining:

[W]hether a criminal defendant has presented sufficient evidence to warrant a jury instruction on an affirmative defense is regarded as a predominantly a legal question. The Court can preclude an affirmative defense at trial if it also determines the defendant has failed to make a prima facie case showing he is eligible to it.

Id. (internal citations omitted). In making this observation, the court in Warren recognized that, even though questions of fact existed, the defendant would not necessarily be entitled to present a RFRA defense, unless it could establish sufficient evidence to support the defense. Thus, Warren supports the Court's analysis above, namely, that Defendants must satisfy a burden of production on each element of their RFRA defense, and if they are unable to meet that burden, they will not be permitted to present that defense at trial.

         In sum, Defendants may not present a RFRA defense at trial. The Court has already determined-with the benefit of an extensive evidentiary hearing and multiple rounds of briefing-that the Government has a compelling interest in applying the laws at issue to Defendants for their actions on April 4-5, 2018, and that applying the laws at issue to Defendants for those actions is the least restrictive means of furthering its compelling interests. That determination is a pure question of law that has been resolved by the Court. Even if the Government's burden under RFRA was not to be decided as a pure question of law, Defendants have pointed to no new or different evidence in attempting re-urging their RFRA defense. Defendants' evidence, therefore, does not satisfy Defendants' burden of production on each element of the RFRA defense. Accordingly, the Court SUSTAINS the Government's Objections to Defendants' RFRA Notices.

         B. RFRA ...


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