Litzky: Exclusion of Expert Testimony Did Not Violate Constitutional Right to Present a Defense

In United States v. Litzky, No. 20-10709 (Nov. 23, 2021) (Jordan, Newsom, Ed Carnes), the Court affirmed defendant's convictions for possessing child pornography, producing it, and conspiring to do the same.  

Defendant raised two issues on appeal: (1) the district court violated her constitutional right to present a defense by excluding expert testimony related to her intellectual disability; and (2) her below-Guidelines sentence was substantively unreasonable. 

The district court found that the expert's proffered testimony failed to focus on the defendant's specific state of mind at the time of the charged offenses.  Therefore, because it failed to show how the defendant was unable to form the required mens rea, it would only serve to confuse the jury.  The Court agreed, finding that defendant's proffered expert testimony was not keyed to any legally acceptable defense theory.   The Court found that the defendant had failed to demonstrate a compelling reason for making an exception to the expert witness rule in FRE 702.  It reasoned that the defendant's proffered expert testimony was more akin to justification and excuse rather than a legally acceptable theory of lack of mens rea.  The Court also found that defendant failed to show that her proffered expert testimony bore persuasive assurances of trustworthiness as required by Rule 702.  "As the Supreme Court [has] explained, the Constitution leaves to the judges who must make these admissibility decisions wide latitude to exclude evidence that poses an undue risk of confusion of the issues.”        

The Court also affirmed defendant's 30-year sentence, which was 600 months below the Guidelines' recommendation.  The district court explained, in a 17-page order, why it believed a downward variance of 50 years--but no more--met the goals of sentencing.  The Court found the district court's determination well within the bounds of its discretion.  

Grady: Affirming Convictions and Sentences Over RFRA Objections

In United States v. Grady, No. 20-14341 (Nov. 22, 2021) (Branch, Grant, Ed Carnes), the Court affirmed defendants' convictions and sentences for conspiracy, destruction of property on a naval installation, depredation of government property, and trespass.  

Defendants, members of the Plowshares Movement--equipped with spray paint, bolt cutters, hammers, blood, banners, crime scene tape, Go-Pro cameras, and others tools--illegally entered the Kings Bay naval base, intending to engage in symbolic disarmament as part of their faith.  They spray-painted numerous anti-nuclear and religious messages at various locations inside the base, poured bottles of human blood at various locations, taped an "indictment" outlining their complaints to a door of one of the buildings, defaced various monuments within the base, and entered restricted areas to hang banners protesting the morality of nuclear weapons and pray.  They were arrested and indicted on charges of: conspiracy; destruction of property on a naval installation; depredation of government property; and trespass.

All defendants moved to dismiss the indictment, arguing that their prosecution violated the Religious Freedom and Restoration Act ("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.  The district court denied their motion.   

On appeal, this Court affirmed the district court.  The Court first noted that the only prong of the RFRA analysis in dispute was the fourth prong: 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.  In order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needs 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.  The Court found that the defendants failed to proffer a least-restrictive means that would simultaneously accommodate their religious exercise while protecting the government’s compelling interests, as was their burden to proffer.

The Court further held that the district court did not err in holding the defendants jointly and severally liable for the full amount of restitution.  Because the losses in question resulted from acts which were part of the conspiracy, the district court had the authority to hold all defendants jointly and severally liable for the full amount of restitution.    

The Court also held that the district court did not err in denying a reduction for acceptance of responsibility to the defendants.  The defendants argued that they went to trial only because of their RFRA defense, and maintained that they never denied engaging in the conduct in question.  But the Court held that the district court did not clearly err in finding 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.  Additionally, because the district court made a Keene finding, any error in denying acceptance of responsibility would have been harmless.       

The Court also held that the district court did not err when it used the total damages amount to enhance one defendant's base offense level under U.S.S.G. § 2B1.1(b)(1)(C).  The Court found that the evidence at trial supported the enhancement.    

The Court also held that the district court did not err in failing to address one defendant's RFRA-related sentencing argument in the context of 18 U.S.C. § 3553(a).  

Finally, the Court held that the district court did not abuse its discretion in failing to give one defendant's requested mistake-of-fact jury instruction.  The government had to prove that the defendants acted consciously and deliberately, not that they knew or believed their actions were illegal.  Therefore, because mistake of fact is not a valid defense, the district court did not abuse its discretion in declining to give the requested instruction.    

Ramirez: Vacating Terrorism-Enhancement Sentence and Remanding

In United States v. Ramirez, No.  20-10564 (Nov. 1, 2021) (Wilson, Rosenbaum, Hull), the Court vacated the defendant's sentence and remanded.  

Defendant purchased firearms and firearm parts and components, often through straw purchasers, and sold them throughout Colombia.  Six firearms found themselves into the hands of members of the National Liberation Army ("ELN"), which the U.S. State Department has designated a foreign terrorist organization.  Defendant pleaded guilty to knowingly providing material support to the ELN, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2.  

At sentencing, defendant challenged the application of the terrorism enhancement under U.S.S.G. § 3A1.4.  He argued that § 3A1.4 required that the government prove not only his material support to the ELN, but also that his offense conduct was "calculated" to influence, affect, or retaliate against the Colombian government.  Defendant claimed that his motive was to profit financially, not to retaliate against the Colombian government.  The district court overruled defendant's objections, suggesting that the court believed that the mere fact that defendant pleaded guilty to knowingly providing material support to a known terrorist organization per se satisfied § 3A1.4's "calculated" or specific intent requirement.  

On appeal, the Court vacated the application of the § 3A1.4 enhancement.  The structure of § 3A1.4 establishes two separate bases for applying the enhancement: (1) when the defendant's offense "involved" a federal terrorism crime; or alternatively, (2) when his offense was "intended to promote" a federal terrorism crime.  The Court focused on the first prong--namely on the meanings of "involved" and "federal crime of terrorism"--and whether defendant's offense or relevant conduct was "calculated" to influence, affect, or retaliate against government conduct.  The Court, agreeing with its sister circuits, found that "calculated" imposes an intent requirement.  That is, the government must show that the defendant's offense was planned to influence, affect, or retaliate against government conduct, even if that was not the defendant's personal motive.  

Here, the district court made no factual findings as to the § 3A1.4 enhancement, and erred in assuming that an offense under §2339B(a)(1) necessarily includes the additional requirement found in § 2332b(g)(5)(A) that the defendant's offense be "calculated" to influence, affect, or retaliate against government conduct.  Whether a defendant's offense is "calculated" to influence, affect, or retaliate against government conduct is a highly fact-specific inquiry that requires an examination of the record as a whole.  Because no such fact finding was conducted here, the district court erred in applying § 3A1.4's terrorism enhancement.  As such, the Court vacated defendant's sentence and remanded for resentencing and fact findings.