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U.S. v. HALE

November 10, 2004.

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW HALE, Defendant.



The opinion of the court was delivered by: JAMES MOODY, District Judge

MEMORANDUM AND ORDER

On April 26, 2004, a jury found defendant Matthew Hale guilty of three counts of obstruction of justice in violation of 18 U.S.C. § 1503, and one count of solicitation to commit a crime of violence in violation of 18 U.S.C. § 373. On June 24, 2004, within a sixty-day extension granted by the court, Hale filed a timely motion for a judgment of acquittal pursuant to FED. R. CRIM. P. 29(c), or alternatively for a new trial pursuant to FED. R. CRIM. P. 33. The motion is supported by a memorandum,*fn1 the government has filed a responsive memorandum (docket # 223, hereinafter, "Government's Response") and Hale has filed a reply memorandum (docket # 228, hereinafter "Defendant's Reply").*fn2 For the reasons that follow, with the exception of Hale's motion for a judgment of acquittal on Count Five, the court will deny Defendant's Motion in all respects.

The court may grant a motion for a judgment of acquittal only if, when the evidence is considered in the light most favorable to the government, no reasonable jury could find guilt. United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999). The standard for granting a new trial is more liberal, but less well-defined, allowing the court to weigh the evidence and act in the interests of justice. A new trial may be ordered if the "verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses." Id.; United States v. Alanis, 265 F.3d 576, 590 n. 8 (7th Cir. 2001).

  Motion for a Judgment of Acquittal

  As to each of the four counts on which he was convicted, Hale argues that the government did not introduce sufficient evidence from which a reasonable jury could find him guilty beyond a reasonable doubt. The Court of Appeals has frequently stated that a defendant making this argument faces an "uphill battle" and bears a "heavy burden." United States v. Wallace, 212 F.3d 1000, 1003 (7th Cir. 2000); see also United States v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001); United States v. Angle, 234 F.3d 326, 339 (7th Cir. 2000). "The test is whether, when the evidence is viewed in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Gardner, 238 F.3d at 879 (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Count One

  Count One of the indictment charged that Hale endeavored to obstruct justice in violation of 18 U.S.C. § 1503 by sending United States District Judge Joan H. Lefkow a letter containing a false statement pertaining to a lawsuit pending before her. In that suit, the World Church of the Creator (hereinafter, "World Church" or "Church") — an organization to which Hale belonged and at the pertinent times headed — was the defendant in a trademark infringement suit brought by a church with a similar name. Judge Lefkow had entered an order requiring the World Church and its members, officers, directors and so on to "deliver up for destruction (or, where feasible, removal or obliteration of any infringing mark from) all" materials bearing the various World Church marks that had been found to constitute infringements.

  Count One of the indictment charged Hale with obstructing justice by sending a letter dated December 12, 2002, to Judge Lefkow which stated, as is pertinent here, "from my understanding of the Court's order, I have no material in my control or possession that falls afoul of it," when, at that time, Hale had at least 97 publications with the term "Church of the Creator" in his possession and control. The publications had been found in a search of the headquarters of the World Church, located in Hale's residence, conducted by the FBI on January 8, 2003.

  Hale argues that because compliance with Judge Lefkow's order could have been achieved by simply obliterating, or masking out, the term "Church of the Creator" on the various documents, and because the government did not offer any evidence showing that Hale did not intend to do so, the letter contained no falsehood: it simply reflected "opting for the most reasonable way to comply." Defendant's Motion at 5. While it is true that such action would have complied with the order, the fact remains that the letter contained a literal falsehood: at the time of writing, Hale had neither "delivered up" the materials for destruction or for removal or obliteration of the offending marks, nor had he taken steps to do so himself. The fact that he may have had an intent to do so at some unknown point in the future is irrelevant to the truth or falsity of the statement in the letter. It should also be noted that Judge Lefkow's order required the Church to file a report explaining how compliance would be achieved, and no report detailing Hale's supposed plan was filed. Vol. 4 at 62, 67-68.*fn3

  Moreover, witness James Burnett, who at the relevant time was a "Creator," the term used to describe a member of the World Church, and part of Hale's inner circle, testified that he had heard Hale discuss the trademark lawsuit and remark "[t]hat he would not hand over any books, that he would have them shipped out to another state." Vol. 5 at 20. Witness Jon Fox, another World Church insider, testified that just before Thanksgiving in 2002 Hale told Fox that Hale had received Judge Lefkow's order, it required the World Church to deliver its books up for destruction, and that he would not comply. Vol. 5 at 108-111. There was more evidence bearing on this issue,*fn4 but as will be true throughout this order, the court, rather than exhaustively addressing it, stops here because this evidence alone is sufficient to allow a reasonable jury to find*fn5 that the statement in the letter was false.*fn6

  Next, Hale argues that, even if false, the government did not prove that Hale acted knowingly, as is required for him to be guilty, that is, that there is no proof that Hale knew the statement was false when he made it. According to Hale, the opposite is shown by the fact that the government's own witness, James Amend (the attorney representing the plaintiff in the trademark suit), testified that Hale could have complied with the order by obliterating or masking out the offending marks, and so Hale cannot be faulted for thinking that he could retain the materials in his possession, while assuring Judge Lefkow that he was in compliance, as long as he intended to take the proper steps in the future. Hale amplifies this argument in Defendant's Reply by noting that he told Judge Lefkow that from his "understanding" of the order he was in compliance, and "as a matter of common sense," that qualification means that he really didn't know whether or not he was in compliance, so "[c]ontained within the sentence itself is reasonable doubt and no rational jury could find beyond a reasonable doubt to the contrary." Defendant's Reply at 23.

  Obviously, this argument is slight variation of the first, the difference being its focus on Hale's state of mind rather than the objective truth or falsity of the statement: because Hale could have believed the statement was true, no reasonable jury could find beyond a reasonable doubt that Hale knowingly told a falsehood. However, all of the evidence the jury heard painted a picture of Hale — whom the jury knew to be a law school graduate — as a person who chose his words carefully and cleverly. In addition, the jury heard Jon Fox testify that on January 7, 2003, the day before the materials were seized, Fox was helping Hale pack up documents that Hale wanted to safeguard from seizure. When Fox asked whether to pack up the materials in question, Hale told him not to because they "might as well leave a few things to be confiscated."*fn7 Vol. 5 at 143. Thus, a reasonable jury could have found that Hale, by qualifying his statement to Judge Lefkow on his "understanding" of her order, made a calculated attempt to be able to disclaim responsibility later, just as he now does. In fact, considering the letter as a whole, in the context of Hale's statements about the trademark litigation and the suggestion that he could have easily obliterated the infringing marks, the court believes that a reasonable jury could infer that Hale had no reason to even bother to mention to Judge Lefkow that he had no non-complying materials in his possession other than for the purpose of misleading her.*fn8 In short, viewing the evidence in the light most favorable to the government, a reasonable jury could find that Hale's statement to Judge Lefkow was made with knowledge of its falsity.

  Hale's final argument on Count One is that the evidence was insufficient to show that he had the necessary corrupt intent; that is, even if the statement in the letter to Judge Lefkow was a "knowing misrepresentation, the government still offered precious little evidence that could tend to show any reasonable person that Defendant acted with the purpose of obstructing justice." Defendant's Motion at 9. As noted above, the jury heard evidence that Hale had stated to World Church members that he had no intention of complying with the order and would ship books out of state rather than turning them over. A reasonable jury could conclude that Hale made the statement in the letter to Judge Lefkow with the necessary corrupt intent.

  Count Two

  Count Two of the indictment charged Hale with solicitation to commit a crime of violence in violation of 18 U.S.C. § 373, that is, that Hale solicited government informant Tony Evola to murder Judge Lefkow. Paraphrasing the elements in simple terms, in order to find Hale guilty of that charge, the jury was required to find beyond a reasonable doubt that Hale intended, under circumstances strongly corroborative of his intent, for Tony Evola to commit a felony involving the use or threatened use of force against Judge Lefkow, and that Hale solicited, commanded, induced or otherwise endeavored to persuade Evola to commit that felony.

  First, Hale argues that the government offered insufficient evidence — in fact, no evidence — of circumstances strongly corroborative of his intent. On this element the parties requested, and the court gave, the jury an instruction (Court's Instruction No. 19A) patterned after Congress's specific examples of strongly corroborative circumstances, as discussed in United States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987).*fn9 The instruction concluded with the statement that the "surrounding circumstances in general must indicate that the solicitor is serious that the person solicited actually carry out the crime." The surrounding circumstances in this case easily make this showing.

  First, Hale sent an e-mail to all World Church members informing them of the order entered by Judge Lefkow, stating that the order placed the Church in a state of war with her, and quoting a passage from the White Man's Bible (one of the Church's "holy books"); that this allowed members to take "the law into our own hands" and "meet force with force and open warfare exists." E-mail dated 11/29/02.*fn10 A few days later Hale sent an e-mail to Evola only, providing Judge Lefkow's name and office address (and of the attorneys representing the plaintiff in the trademark suit), and asking Evola to obtain each person's home address. The e-mail then stated: "Any action of any kind against those seeking to destroy our religious liberties is entirely up to each and every Creator according to the dictates of his own conscience."*fn11 E-mail dated 12/04/02.

  The following day Evola went to Hale's residence and told him that Evola had received the "e-mail about the Jew judge . . . you wanting his address and the other rats." Hale responded: "That information, yes, for educational purposes and for whatever reason you wish it to be."*fn12 Recorded conversation of 12/05/02. Besides being a not-too-subtle hint that Evola — the head of the "White Berets," the security force for the World Church — should think about doing more than sending the Judge a greeting card, one of the corroborating circumstances listed by Congress is acquiring information suited for use by the person being solicited, and providing Judge Lefkow's name and office address to Evola generally falls within that category.*fn13 Continuing with the conversation of 12/05/02, Evola stated that he had a way of "getting it" — which a jury could reasonably understand to mean the home address of the "Jew judge" — and asked, "when we get it, we gonna exterminate the rat?" Hale's response was "well, whatever you wanna do . . . I'm gonna fight within the law and but, ah, that information's been provided. If you wish to, ah, do anything yourself, you can, you know?" Evola answers "OK" and Hale states "So that makes it clear." Evola then says, "Consider it done" and Hale replies "Good." In conjunction with the earlier e-mails and other parts of the conversation, Hale's statement to Evola that if he "wish[ed] to do anything" himself, he could, was at least the fourth reminder to Evola that he could take action against Lefkow.

  Even children understand the tactic of encouraging others to take action through passive exhortation: "Mom said we shouldn't get in the cookie jar. I'm not going to get in the cookie jar, but if you want to get in the cookie jar, that's up to you." A reasonable jury could find that Hale's repeated*fn14 reminders that Evola could take action if he wished were repeated solicitations for Evola to commit the offense, and repeated solicitation of the offense is another of the examples given by Congress of a strongly corroborating circumstance.

  This is particularly true where, after Evola said "[c]onsider it done," Hale replied, "[g]ood." Instead of saying "you have misunderstood me," or "I was only joking," this expression of approval for Evola's plans could reasonably be interpreted as an express protestation of seriousness by Hale, another of the specific factors listed by Congress. Adding to the gravity of the remark, only a few moments later Hale told Evola, "if something happens to me, then, you know, make sure that, that the world knows about it in a very strong way, you know." Evola asked "any special way," and Hale replied "just use your imagination." Interpreting these remarks in light of other evidence introduced showing that Hale had praised*fn15 the actions of Ben Smith, a World Church member who had gone on a shooting spree targeting minorities several years earlier, the jury could view this as further evidence that Hale truly intended for Evola to engage in violence.

  While the evidence just summarized is enough, by itself, to allow a reasonable jury to find that the "surrounding circumstances in general . . . indicate that the solicitor is serious that the person solicited actually carry out the crime," there was other evidence. Another factor listed by Congress as an example of a strongly corroborating circumstance is the belief or knowledge that the person being solicited had previously committed similar offenses. While there is no evidence Hale had such knowledge as to Evola, Hale on ...


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