Wednesday, March 28, 2012

Judge in Christian terrorist Hutaree Militia case: being fools and losers with violent fantasies is disgusting but not a federal crime

I've posted here before about the Hutaree Militia, a Christian terrorist-wannabe group who were charged with planning to murder cops. The federal judge on the case dismissed the main conspiracy charge against the group, basically ruling that it's not illegal to be a hateful fool with violent fantasies. These are not nice people; their leader is on tape talking about his desire to murder cops, along with their wives and children. http://on.freep.com/GWNTYy It sounds like the prosecutors blew it badly, from the judge's statement.

Well, the "Christian" part is in their ideology, but the feds could only show they were terrorist wannabes, which is why the main conspiracy charge was dismissed: (Tresa Baldas and David Ashenfelter, Judge acquits 7 Hutaree militia members accused of terrorist overthrow plot Detroit Free Press 03/27/2012) http://on.freep.com/GWNTYy These are not nice people; their leader is on tape talking about his desire to murder cops, along with their wives and children. (Tresa Baldas, Accused Hutaree ringleader says in recording he wanted to kill police, their families Detroit Free Press 03/23/2012) It sounds like the prosecutors blew it badly, from the judge's statement.

The judge's statement, though, seems pretty clear on the evidence that the Hutaree group was training with weapons, and that their leader was talking very explicitly about using the group to murder cops - including a very explicit part on the tape about killing their children. Given the over-the-top federal laws on associating with terrorist groups, it seems to a non-expert that pinning a "support of terrorism" charge on them would have been feasible.

But the federal prosecutor's main charge was that they had participated in a specific plan to murder cops. The judge basically said the conspiracy charge was so weak she wasn't going to send it to the jury. These two Excerpts from Judge Victoria Roberts' decision Detroit Free Press 03/28/2012 address her decision on that charge:


"The government's case is built largely of circumstantial evidence. While this evidence could certainly lead a rational fact finder to conclude that 'something fishy' was going on, it does not prove beyond a reasonable doubt that defendants reached a concrete agreement to forcibly oppose the U.S. government. ..."

"It is telling that in an investigation that spanned nearly two years, there were only two brief instances in which the alleged plan to kill a member of local law enforcement and attack the ensuing funeral procession was mentioned. Furthermore, the evidence of the necessary next step -- a retreat to rally points from where the larger uprising would occur -- is wholly lacking. The government did produce some evidence of so-called rally points, but failed to produce evidence of the uprising that would follow."

And she points out that there is no law against just being a hateful fool with violent fantasies:

"Stone's statements and (training) exercises do not evince a concrete agreement to forcibly resist the authority of the United States government. His diatribes evince nothing more than his own hatred for -- perhaps even desire to fight or kill -- law enforcement; this is not the same as seditious conspiracy."

"This 'plan' is utterly short on specifics. Further, it is a stretch to infer that other members of the Hutaree knew of this plan, and agreed to further it."

It's no secret that the feds use informers in these kinds of cases. And that was the case here. The Toledo Blade reports in Judge acquits 7 in Hutaree of conspiracy 03/27/2012:

The FBI planted a local informant, Dan Murray, inside the Hutaree in 2008 and subsequently added an agent from New Jersey, Steve Haug. Known as "Jersey Steve," he posed as a trucker and spent months secretly recording talks with the elder Stone, even serving as Stone's best man at his wedding. The wedding party dressed in military fatigues.

Mr. Haug repeatedly talked to Stone about building pipe bombs and getting other sophisticated explosives. The FBI rented a warehouse in Ann Arbor where the agent would invite Stone and others to store and discuss weapons.

Mr. Haug told jurors he was "shocked" by Stone's knowledge of explosives, noting it matched some of his own instruction as a federal agent.
Dan Murray doesn't sound like the ideal prosecution witness (Tresa Baldas, Hutaree militia group informant reveals troubled past during today's testimony Detroit Free Press 02/24/2012):

Defense lawyers, hoping to discredit his credibility, grilled the informant about a shooting incident involving his wife, a knifing incident in which he stabbed himself in the gut with a 14-inch knife and initially blamed his wife, his battle with alcohol abuse, and his failure to pay taxes on the $30,000 he earned as an informant spying on the Hutaree.

The informant, Dan Murray, a college-educated IT specialist in his 50s who earns a six-figure salary at his real job, is among the government's key witnesses in the terror trial.

The reports I've seen don't explicitly address what role the informers' credibility played in the judge's decision. But there have been several recent cases involving Muslims in which the FBI basically has an informant also taking on the provocateur role and suggest a plot to a terrorist wannabe and offer to provide them weapons. Something like that may have been going on here. In some cases, it looks an awful lot like the FBI cooks up its own terrorist plot and then busts it.

Prosecutors do just screw up sometimes, and it sounds like that may be what happened here. Judge Roberts said in the decision, "The prosecution is not free to roam at large -- to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial." They started off arguing a specific plot, then shifted to arguing a more general plan. Which makes me wonder if they realized that some of the information that the infiltrators were providing wouldn't stand up in court. Whatever the reason, they changed their theory of the case, and the judge decided they were arguing a case that was substantively different than the one stated in the grand jury indictment. The full text of the judge's decision is available here at the website of the US District Court for the Eastern District of Michigan. Here are a few other quotes from the decision:

Though the Court may "draw reasonable inferences from basic facts to ultimate facts," see id., it must be mindful that "charges of conspiracy are not to be made out by piling inference upon inference." Ingram v. United States
Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a "specially meticulous inquiry" into the government’s evidence so there is not "an unfair imputation of the intent or acts of some participants to all others." United States v. Dellinger... It is black-letter law that "[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegalobjective is not sufficient to make an individual a conspirator." ... Likewise, mere presence at the scene does not establish participation in a conspiracy.
The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. ... (“Sedition against the United States is not a local offense. It is a crime against the Nation.” ... Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, "the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it ...."
The Government's current position is not in accord with the Indictment or a previous order of this Court, where Magistrate Judge Komives recognized that this last stage – the uprising against the Government of the United States -- was a necessary element of the alleged seditious conspiracy. In rejecting Defendants’ argument that the Indictment should be dismissed because the alleged conspiracy involved “a local plot, involving a local officer, and a local battleground,” Magistrate Komives wrote:

It is true that the initial step in defendants’ alleged plan was the assassination of a local law enforcement official. This first step, however, is alleged to have been a means toward the group’s ultimate goal of provoking an armed confrontation with local and federal law enforcement officials. And there can be no doubt that conspiring to deliberately provoke an armed conflict with federal law enforcement officials constitutes a conspiracy to “oppose by force the authority” of the United States and to “by force . . . prevent, hinder, or delay the execution of any law of the United States.” 18 U.S.C. § 2384. It may be that the evidence at trial will establish nothing more than a local plot against local law enforcement officials, but the indictment alleges more than this.
And this is a critical point:

The Court need not decide whether a conspiracy to attack the funeral procession of a local law enforcement officer would be within the ambit of the seditious conspiracy statute, though; as explained in greater detail below, the Government did not provide sufficient proof of the existence of any conspiracy at all. [my emphasis in bold]
So is this:

Tellingly, the testimony of [the infiltrator, FBI] Agent Huag is critical to the Government’s case. gent Huag admitted on the stand that over the course of his investigation of the Hutaree, the group never had: a date, time, target or plan for any attack. Vague antigovernment hate speech simply does not amount to an agreement as a matter of law. The Court would need to infer and speculate not only that the other Defendants were aware of Stone’s desire to spark a war with the federal government, but that an agreement to do so in the manner alleged in the Indictment was reached. Reason will not allow such an incredible inference on this record. [my emphasis in bold]
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