Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 1 of 20

1 2 3 4 5 6 7

MARK J. REICHEL, State Bar #155034 THE LAW OFFICES OF MARK J. REICHEL 655 University Avenue, Suite 215 Sacramento, California 95825 Telephone: (916) 974-7033 [email protected] Attorney for Defendant ERIC MCDAVID

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,
12

v.
13 14

ERIC MCDAVID,
15 16 17 18 19 20 21 22 23 24

) ) ) ) ) ) ) ) ) )

Case No.

CR.S-06-0035-MCE

DEFENDANTS MOTION TO DISMISS INDICTMENT FOR FIRST AMENDMENT VIOLATION. DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS THE INDICTMENT AS PROSECUTION IN THE CASE IS IN VIOLATION OF DEFENDANTS FIRST AMENDMENT RIGHTS TO FREE POLITICAL SPEECH AND FREEDOM OF ASSOCIATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; REQUEST FOR EVIDENTIARY HEARING. Date: February 6, 2007 Time: 8:30 A.m. Judge: Hon. Morrison C. England

Defendant. __________________________ _

TO: McGREGOR SCOTT, United States Attorney, and Assistant United States STEVEN R. LAPHAM: PLEASE TAKE NOTICE THAT at the above date and time, or

25

as soon thereafter as the matter may be heard, defendant,

through his attorney, will and hereby does move for an order
27 28 Mot.Dsm upon violation of First Amendment

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 2 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

dismissing the indictment with prejudice as prosecution of the defendant based upon the facts before the court establish that the criminal conspiracy statute is illegal as applied to this defendant under the First Amendment of the United States Constitution. MOTION Defendant Eric McDavid moves the Court for an order dismissing the indictment with prejudice on the grounds that his prosecution, under this federal statute, is illegal as applied under the First Amendment. McDavids lawful

exercise of his Free Speech Rights and Freedom of Association Rights, guaranteed under the U.S. Constitution, caused his investigation by law enforcement and subsequent prosecution. This motion rests on the files and records of this case and the attached Memorandum of Points and Authorities. Additional evidence or argument may be offered at or before the hearing. This motion is based on the United States Constitution, the Federal Rules of Criminal Procedure, the Points and Authorities submitted in support, and such argument and evidence of counsel at the hearing on the motion. Respectfully submitted DATED: December 19, 2006.

MARK J. REICHEL ATTORNEY AT LAW Attorney for defendant /S/ Mark Reichel

28 Mot.Dsm upon violation of First Amendment 2

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 3 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING FACTS1 In the present case, lawful political speech and association, the hallmarks of American liberty and the First Amendment, are so "chilled" by the application of this criminal statute that the indictment against the defendant must be dismissed. This case began because of the following factors (1) in 2002 and onward, the FBI and the Department of Justice illegally targeted certain people and groups who lawfully dissented with the present American governmental policies, and (2) an untrained and yet well paid informant who used the name Anna, was set up to work for the FBI from 2003 onward to infiltrate these targeted people and groups who were exercising their constitutionally protected right to voice dissent at the U.S. Government and its domestic and international political policies.

The factual background comes from the discovery provided by the government, defense investigation conducted to date, and the anticipated testimony and evidence to be submitted at the hearing of the motion. Familiarity with the facts is assumed and the governments version is succinctly stated in the Criminal Complaint, incorporated herein by reference. Mot.Dsm upon violation of First Amendment 3

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 4 of 20

1 2 3 4 5 6 7 8 9 10 11

THE APPLICABLE LAW These are the rules our government must play by. Specifically, the Constitution prohibits domestic surveillance of U.S. citizens First Amendment activity in the absence of a reasonable suspicion of criminal activity. Freedom of speech. The First Amendment to the United States Constitution provides Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. No otherwise appropriate Congressional statute for the

12

enforcement of the criminal law may violate any portion of

the U.S. Constitution or the Bill of Rights in its

application.
15 16

United States v. Stewart, 384 F.3d 1132 (9th

Cir. 2003). (The application of the otherwise lawful criminal statute 18 U.S.C. 922(o) violates the Commerce Clause in the
17

case because the machine gun was completely home--made and

had no effect on interstate commerce.) See also McIntyre v.

Ohio Elections Comm'n, 514 U.S. 334, 356 (1995) and Brown v.
20

Socialist Workers '74 Campaign Comm., 459 U.S. 87, 88

(1982)(Campaign contributions as protected speech as

applied). A municipal ordinance may be applied in such a way

as to infringe on rights protected by the First Amendment

even if such ordinance is otherwise valid under another,

different, Constitutional Amendment. Felix. V. Young, 536

F.3d 1126 (7th Cir. 1126) If the government can act in the manner in which they

28 Mot.Dsm upon violation of First Amendment 4

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 5 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

have in this case, the "freedom" of speech will be so substantially "chilled" that these statutes may not be used to support a prosecution. See United States v. United States Dist. Court for the Central District of California (Kantor), 858 F.2d 534 (9th Cir. 1988)(Imposing criminal sanctions on the basis of strict liability in some circumstances would seriously "chill protected speech.") Freedom of Association The freedom to engage in association for the advancement of beliefs and ideas is one of the most valuable rights guaranteed to us by the First Amendment. Alabama, 357 U.S. 449, 460 (1958). NAACP v.

Because the disclosure of

the identities of a groups members and contributors may have the practical effect of infringing upon protected associational rights, governmental efforts to compel such disclosures must be subjected to strict scrutiny. See

Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); Local 1814, Intl

Longshoremens Assn. v. Waterfront Commn of New York Harbor, 667 F.2d 267 (2d Cir. 1981). As well, in United States v. Briggs, 514 F.2d 794, 806 (5th Cir. 1975), the Fifth Circuit held that the chilling of political expression and association by a grand jury is not a governmental interest that we can accept or consider. It

would circumvent the adversary process which is at the heart of our criminal justice system and of the relation between the government and citizen under our constitutional system. It would be intolerable to our society.
Mot.Dsm upon violation of First Amendment 5

See also Bursey v.

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 6 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

United States, 466 F.2d 1059 (9th Cir. 1972), overruled on other grounds, In re Grand Jury Proceedings, 863 F.2d 1059 (9th Cir. 1988). These rights do not simply protect the minority view in our country; they protect our country. Importantly, if the "tables were turned," on to those who actually favor the policies of the American government over the past 5 years, the law's present application would also be urged as

illegal, for as our Supreme Court has taught us The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112113, 93 L. Ed. 533, 69 S. Ct. 463 (1949) (concurring opinion). Politically motivated surveillance by the FBI raises serious First Amendment concerns, including violations of associational rights. When investigations focus not on legitimate law enforcement purposes but rather on subjects' First Amendment conduct, fundamental yet fragile constitutional rights are abridged by this phenomenon of "political profiling." This form of profiling relies on guilt by association and is simply not a legal law enforcement technique. The Supreme Court's expansive construction of the First Amendment-based right of association, as originally defined
Mot.Dsm upon violation of First Amendment 6

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 7 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in NAACP v. Alabama, 357 U.S. 449 (1958), and most recently in Boy Scouts v. Dale 530 U.S. 640 (2000) can protect groups engaged in First Amendment conduct from unjustified political surveillance. Because privacy in association is fundamental to the First Amendment, because political surveillance causes significant harm to expressive association, and because a group's conception of the conduct that would interfere with its expression must be taken into account, the right of association outweighs FBIs interest in investigating a crime where there has been no showing of reasonable suspicion criminal activity is afoot. While this reasonable

suspicion standard comes from Fourth Amendment doctrine, political surveillance is analyzed under the stricter standards of the First Amendment, since political speech is given the highest degree of protection. Politically motivated investigations are simply not permissible as the mission of law enforcement is to enforce the criminal laws, not to monitor political. The history and purposes of the constitutional right of association corroborate this conclusion. A consent decree that essentially adopts this approach was recently entered in a political surveillance lawsuit against the Denver Police Department.2 In addition, the

See Kevin Vaughan, Police Will Still Gather Intelligence; but "Spy Files' Settlement Places Restrictions on How It Can Be Done, Rocky Mtn. News, Apr. 18, 2003, at 12A. (discussing the consent decree entered in the Denver political surveillance litigation limiting Denver police to initiating investigations only when a reasonable suspicion concerning a serious crime exists). Mot.Dsm upon violation of First Amendment 7

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 8 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

reasonable suspicion standard prior to investigations like the one in the case at bar is the federal requirement for police departments accepting federal aid.3 The famed (and now much needed ) Church Committee Report recommended employing

28 CFR 23.1; 23.20; 23.30. In relevant part, 28 C.F.R. Chapter 23 requires that (italics and underline added for emphasis) 23.1: The purpose of this regulation is to assure that all criminal intelligence systems operating through support under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3711, et seq., ..are utilized in conformance with the privacy and constitutional rights of individuals. 23.2: It is recognized that certain criminal activities including but not limited to loan sharking, drug trafficking, trafficking in stolen property, gambling, extortion, smuggling, bribery, and corruption of public officials often involve some degree of regular coordination and permanent organization involving a large number of participants over a broad geographical area. The exposure of such ongoing networks of criminal activity can be aided by the pooling of information about such activities. However, because the collection and exchange of intelligence data necessary to support control of serious criminal activity may represent potential threats to the privacy of individuals to whom such data relates, policy guidelines for Federally funded projects are required. 23.20 (a) A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity. (b) A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity. Reasonable Suspicion or Criminal Predicate is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise... Mot.Dsm upon violation of First Amendment 8

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 9 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the standard in terrorism investigations as early as 1976.4 Those are the rules the FBI must live by. APPLICATION TO THE CASE AT BAR. 1.The FBIs war on ELF/ALF. On February 12, of 2002, James F. Jarboe, Domestic Terrorism Section Chief, Counterterrorism Division of the FBI, testified before the House Resources Committee, Subcommittee on Forests and Forest Health on the "The Threat of Eco-Terrorism.5 His testimony centered on labeling the Earth Liberation Front and Animal Liberation Front as the emerging two most dangerous domestic terrorism groups. He acknowledged that no one had yet suffered any physical harm by these groups, however. Unfortunately for federal law enforcement, these groups that the DOJ and FBI were targeting did not have any membership lists or associational rolls. Unlike the NAACP and/or the Teamsters Union or any of the other, former targets of the illegal federal law enforcement attacks, these targets they were after in 2001 onward didnt have
4

See Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities Report, S. Rep. No. 94-775, 94th Cong., 2d Sess., Book III, at 679-732 (1976), available in part at www.cointel.org [hereinafter Church Committee Report]. This comprehensive four-volume report exhaustively catalogues FBI abuses of its investigative authority from 1936-1976. Book II, pages 28-33. See the following links: http://www.fbi.gov/congress/congress02/jarboe021202.htm and/or the FBI link which is at http://www.fbi.gov/congress/congress02.htm. McGregor Scott, the current United States Attorney for the Eastern District of California, joined the crusade, testifying that these 2 groups were the same as international terrorist organizationagain, acknowledging that not one person has yet to be physically harmed by their actions. His testimony can be found at http://www.animalrights.net/archives/year/2004/000194.html Mot.Dsm upon violation of First Amendment 9
5

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 10 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

published agendas and rented halls, auditoriums and hotels. As such, indiscriminately, agents and informants went out and did as they pleased to infiltrate persons and groups based upon hunches, profiles and sheer luck.6 Surprisingly, the conduct of the CS Anna in the case at bar did not follow Domestic Terrorism Director Jarboes instructions which he provided to Congress in 2002 that ...Law enforcement becomes involved when the volatile talk

And thats the problem. In Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups Linda E. Fisher 46 Ariz. L. Rev. 621 (Winter 2004.), Professor Fisher aptly notes that Historically, however, police agencies have assumed that anyone holding views such as those in the examples above must also be inclined to violence, since terrorists hold similar views. But many individuals hold beliefs in common with terrorists without any intent to engage in violence themselves. For example, millions harbor racist beliefs, but only a tiny percentage engage in racist violence. While it is undoubtedly true that individuals holding extremist beliefs are more likely than the general population to engage in terrorism, the proportion of those holding extremist beliefs who engage in terrorism is so minuscule that the mere existence of their beliefs, without more, cannot justify surveillance. Any policy to the contrary would not only violate First Amendment rights, it would also divert scarce law enforcement resources from investigating those more likely to act illegally. In the second instance, conducting surveillance because of any association with a suspect group, agencies have assumed that individuals share a group's goals regardless of the level of association, so that the most fleeting and transitory of associations have triggered intrusive surveillance of individuals. For instance, those attending a demonstration organized by a group considered "extremist" would also be targeted, even if they were unaware of the group's sponsorship or goals. Note that I am not referring here to investigations of individual members of groups that are legitimately targeted for terrorism investigations; rather, I refer to investigations of individuals with only the most attenuated ties to a suspect group, as well as to investigations of individuals associated with a group that is not a legitimate target. The group is harmed when the costs of affiliation increase, distorting the group's identity and message. Unless additional evidence reveals further ties, or an emergency justifies a preliminary inquiry, investigations of people in these situations should be discontinued. Mot.Dsm upon violation of First Amendment 10

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 11 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

of these groups transgresses into unlawful action...7 What Anna did in the present case, according to the discovery and even the criminal complaint, was to infiltrate and investigate (i.e. Get involved) well prior to any talk turned into unlawful action. The criminal complaint states that Anna targets anarchists as they share philosophies with the ELF, although there is no mention of crimes attributed to anarchists based on their philosophy. The illegal assault on rights continued, and on May 18 of 2005 John E. Lewis, Deputy Assistant Director, Counterterrorism Division of the Federal Bureau of Investigation, testified before the Senate Committee on Environment and Public Works.8 Director Lewis acknowledged
7

There, he advised the committee that

During the past decade we have witnessed dramatic changes in the nature of the terrorist threat. In the 1990s, right-wing extremism overtook left-wing terrorism as the most dangerous domestic terrorist threat to the country. During the past several years, special interest extremism, as characterized by the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF), has emerged as a serious terrorist threat. Generally, extremist groups engage in much activity that is protected by constitutional guarantees of free speech and assembly. Law enforcement becomes involved when the volatile talk of these groups transgresses into unlawful action. The FBI estimates that the ALF/ELF have committed more than 600 criminal acts in the United States since 1996, resulting in damages in excess of 43 million dollars. (Emphasis added.) Testimony February 12, 2002.

24 25 26 27 28

The testimony is reproduced at some lengthwhere relevant-- as it is of exceeding benefit to the reader. Good morning Chairman Inhofe, Ranking Member Jeffords, and members of the Committee. I am pleased to have the opportunity to appear today and to discuss the threat posed by animal rights extremists and eco-terrorists in this country, as well as the measures the FBI and its partners are taking to address this threat. One of today's most serious domestic terrorism threats come from Mot.Dsm upon violation of First Amendment 11

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 12 of 20

1 2 3 4 5 6 7 8

that there had been no physical injuries to anyone, and that there is legitimate expressive conduct involved by members of these groups. Unknowingly, he acknowledges that the

special interest extremist movements such as the Animal Liberation Front (ALF), the Earth Liberation Front (ELF), and Stop Huntingdon Animal Cruelty (SHAC) campaign. Adherents to these movements aim to resolve specific issues by using criminal "direct action" against individuals or companies believed to be abusing or exploiting animals or the environment. ... The distinctions between constitutionally protected advocacy and violent, criminal activity are extremely important to recognize, and law enforcement officials should be solely concerned with those individuals who pursue animal rights or environmental protection through force, violence, or criminal activity. Law enforcement only becomes involved when volatile talk turns into criminal activity. Unfortunately, the FBI has seen a significant amount of such criminal activity. From January 1990 to June 2004, animal and environmental rights extremists have claimed credit for more than 1,200 criminal incidents, resulting in millions of dollars in damage and monetary loss. Preventing such criminal activity has become increasingly difficult, in large part because extremists in these movements are very knowledgeable about the letter of the law and the limits of law enforcement. Moreover, they are highly autonomous. Lists of targets and instructions on making incendiary devices are posted on the Internet, but criminal incidents are carried out by individuals or small groups acting unilaterally. Criminal activity by animal rights extremists and eco-terrorists in particular requires relatively minor amounts of equipment and minimal funding. Extremists of these movements adhere to strict security measures in both their communications and their operations. The FBI has developed a strong response to domestic terrorism threats. Together with our partners, we are working to detect, disrupt, and dismantle the animal rights and environmental extremist movements that are involved in criminal activity. ... Investigating and preventing animal rights extremism and eco-terrorism is one of the FBI's highest domestic terrorism priorities. We are committed to working with our partners to disrupt and dismantle these movements and to bring to justice those who commit crime in the name of animal or environmental rights. Chairman Inhofe and Members of the Committee, I appreciate the opportunity to discuss the challenges we face and the ways we can overcome them. (http://www.fbi.gov/congress/congress05/lewis051805.htm Mot.Dsm upon violation of First Amendment 12

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 13 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Constitutional line is clearly crossed by the FBI when he advises that they are involved in detecting, disrupting and dismantling the groups. He also acknowledges that it is really difficult to define them as groups. The Senate Committee was not impressed. According to a report from journalist Terry Frieden of CNN on May 18, 2005, Senior officials from the FBI and the Bureau of Alcohol, Tobacco, Firearms (ATF) and Explosives told a Senate panel of their growing concern over these groups. Of particular concern are the Animal Liberation Front (ALF) and the Earth Liberation Front (ELF).... However, Some committee members have expressed skepticism over the high level of concern toward environmental and animal rights extremists.The Department of Homeland Security spends over $40 billion a year to protect the home front, Sen. Frank Lautenberg said. After listing al Qaeda, Hamas and Hezbollah, the Democrat from New Jersey wanted to know who else the law enforcement agencies considered terrorists: Right to Life? Sierra Club? Lautenberg declared himself a tree hugger. And Sen. James Jeffords also issued a statement expressing doubt about the target of concern. Congress can't do much about individual extremists committing crimes in the name of ELF or ALF, but we can act to significantly enhance the safety of communities across the nation, the independent from Vermont wrote.ELF and ALF may threaten dozens of people each year, but an incident at a chemical, nuclear or wastewater facility would threaten tens of thousands. See

Mot.Dsm upon violation of First Amendment

13

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 14 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

http://www.cnn.com/2005/US/05/18/domestic.terrorism/
9

.9

The Senators on the Committee fired back at Deputy Director Lewis. Senator Lautenberg stated Oversight on Eco-terrorism specifically examining the Earth Liberation Front (ELF) and the Animal Liberation Front (ALF) In our country we are blessed to have a political system where we are free to disagree with one another and with our government. When we want to change things, we must work for change within the law not break the law. So I condemn any violence for political or ideological purposes. And I am concerned that people in my state have been victimized by individuals or groups that want to change policies regarding the treatment of animals, or the environment. Having said that, we need to keep things in perspective. As I mentioned, the Oklahoma City bombing killed 168 people. The attacks of 9/11 killed 3,000. Since 1993, there have been at least five fatal attacks on doctors who performed legal abortions. Eric Rudolph recently pleaded guilty to placing a bomb in a public area during the Olympic Games in 1996, as well as bombing a Birmingham womens clinic and a gay nightclub. All of these cases involved the loss of human life. To date, not a single incident of so-called environmental terrorism has killed anyone. Its wrong to destroy property and intimidate people who are doing their jobs and those who commit these crimes must be brought to justice. But let us not allow ourselves to be blinded to the more serious threats posed by those who have taken innocent lives. We also must be careful not to proclaim guilt by association. The acts of one individual do not mean that an entire organization can be labeled a terrorist group. Timothy McVeigh was a member of the National Rifle Association. That doesnt make the NRA a terrorist group. The National Right to Life Committee is opposed to legal abortion. Eric Rudolph bombed a Birmingham abortion clinic, and he was involved with several anti-abortion groups. That doesnt mean that the members of the National Right to Life Committee are terrorists. Terror is a tactic. We must condemn that tactic whenever it raises its ugly head regardless of the ideology of those who would employ it. But we must take care not to lump legitimate groups with terrorists. To do so would only minimize the very real threats against our society. (Italics added.) Statement of Senator Barack Obama In America, we have the right to disagree over personal beliefs whether they are religious, philosophical or moral and to express those beliefs peaceably. We have the right to assemble and to demonstrate. But, we do not have the right to destroy others property and to commit acts of violence in the name of free speech. Those who engage in such acts should be punished to the full extent of the law. We need to support our law enforcement officials in their efforts to apprehend these criminals and bring them to justice. However, in our quest to apprehend these Mot.Dsm upon violation of First Amendment 14

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 15 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Despite the clear instruction to the contrary from that Senate Committee, the DOJ and FBI marched on and their policy created Anna. 2. Anna the informant. Based upon the directives from

the FBI, Anna performed her work. The FBI proudly announced in the criminal complaint in this case that she has successfully assisted in 12 anarchist investigations, as if that were co equal with criminality, like stating she helped in 12 illegal drug transactions or 12 mafia investigations. However, that is the least of her illegal work. The criminal complaint itself, as well as the discovery, boldly states as if it were perfectly legal -- that Anna went to lawful demonstrations and gatherings in disguise, lying about her identity and past, and gathering information for the FBI. She was targeting young people who were dissenting from the governments political policies, who

criminals, I hope we are not headed down the path of infringing on the ability of legitimate advocacy organizations to express their opinions and to raise funds in order to do so. I do not want Americans to equate groups that advocate violence with mainstream environmental organizations. We also need to put these violent acts into context. The FBI has indicated a downward trend in the number of crimes committed by these groups approximately 60 in 2004. While I want these crimes stopped, I do not want people to think that the threat from these organizations is equivalent to other crimes faced by Americans every day. According to the FBI, there were over 7,400 hate crimes committed in 2003 half of which racially motivated. More directly relevant to this committee, the FBI reports 450 pending environmental crimes cases involving worker endangerment or threats to public health or the environment. So, while I appreciate the Chairmans interest in these fringe groups, I urge the Committee to focus its attention on larger environmental threats, such as the dangerously high blood lead levels in hundreds of thousands of children. With all due respect, Mr. Chairman, I believe the Committees time would be better spent learning why EPA has not promulgated regulations to deal with lead paint in remodeled homes. Such an oversight hearing could have a significant impact on improving the lives of children all over the country. Mot.Dsm upon violation of First Amendment 15

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 16 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

gathered to associate and voice that dissent, and she felt it was strategic to specifically target those who entitled themselves anarchists or green anarchists, all in the hopes of meeting people associated with ELF and or ALF.10 As a direct result of illegally targeting people, Anna met and befriended this defendant. She had no tip about him, no reasonable suspicion of criminality. Rather, he was part of the catch in the broad net she spread out, woven with deception and illegality. Defense investigation has learned that Anna was prominent as an informant for protest groups at both the Republican National Convention in New York in August of 2004 and the Democratic Convention in Boston in 2004. Not surprisingly, the Department of Justices Office of the Inspector General was contacted by several Congressman who requested an investigation into FBI tactics at the conventions as violative of ...First Amendment free speech and assembly rights by the Justice Department in connection with their investigations of possible protests at the

Again, it might be that of the people who attend peace rallies and protest American government policies, there are some who share extremist views, and of those some who might take action. Again, that is most assuredly not reasonable suspicion and is in fact quite illegal as chilling of the hallowed expressive and associational rights to which we are all guaranteed. It happened in this case. On January 13, the FBIs David Picard plainly admitted to CBS affiliate Channel 13 in Sacramento that the FBI is again investigating an entire ideology as if it constitutes a domestic security threat. He said, one of our major domestic terrorism programs is the ALF, ELF, and anarchist movement, and its a national program for the FBI. The Green Scare and the U.S. Government's Case Against Rod Coronado, Ben Rosenfeld, Civil Rights Attorney, published at CounterPunch.org, March 10, 2006 Mot.Dsm upon violation of First Amendment 16

10

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 17 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Democratic and Republican political conventions in Boston and New York and other venues.11 Many groups have been subject to investigation and harassment from federal law enforcement while they have not themselves engaged in any criminal activity whatsoever.12 The defendant in the case at bar falls in to that unfortunate category.13 The FBIs overall use of informants was the subject of a very well publicized and sharply critical September 11, 2005 Department of Justice internal audit entitled U.S. Department of Justice, Office of Inspector General, FBIs Compliance with the Attorney Generals Investigative Guidelines. The report, (hereinafter DOIG), after redacting for sensitive information identified by the FBI, was released to the public and is available in pdf format at www.usdoj.gov/oig/special/0509/final.pdf. That report contains the concerns about informants at political convention at page 13.
11

The horror stories abound: a quick tour of just about any website for any group even marginally vocal in their dissent from the administrations polices since 2001 have been the victim of illegal spying and infiltration by federal law enforcement backed or supported agencies; from the Humane Society to Grandmothers For Peace in Fresno, California. For an excellent, although almost dated examination, see Guilt by Expressive Association: Political Profiling, Surveillance and the Privacy of Groups Linda E. Fisher 46 Ariz. L. Rev. 621 (Winter 2004.) For a more current treatment of the issue, see www.aclu.org and also the Center For Constitutional Rights at ccr-ny.org.

12

Such federal law enforcement abuse is not entirely new, however. For example, earlier this century, the grand jury system was improperly used to frame labor organizers and union leaders and to facilitate witch hunts for Communist sympathizers. Michael Deutsch, The Improper Use of the Federal Grand Jury: An Instrument for the Internment of Political Activists, 75 J. Crim. L. & Criminology 1159 at 1171-73, 1175-78 (1984). More recently, during the Nixon administration, over one thousand political activists were subpoenaed to more than one hundred grand juries across the nation. Id. at 1179. The targets of these grand juries included anti-Vietnam War activists, leftist Mot.Dsm upon violation of First Amendment 17

13

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 18 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

First Amendment conduct is expressive speech and conduct that is protected by the First Amendment, such as political speech or religious ritual. See Alliance to End Repression v. City of Chicago, 561 F. Supp. 537, 562 (N.D. Ill. 1982), modified on other grounds, 237 F.3d 799 (7th Cir. 2001). United States v. United States Dist. Court, 407 U.S. 297, 314 (1972) ("Constitutional protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security.'"). Here, according to the discovery provided by the government, and pursuant to defense investigation14, it is undisputed that Anna spent almost all of her time going to perfectly lawful political gatherings as an undercover FBI informant. She sought out and suggested criminality to those she met. She targeted this defendant without any reasonable

academics, the Catholic left, and supporters of the womens movement and the black nationalist movement. Id. at 1180. The grand juries were widely understood at the time to be domestic intelligencegathering operations, which prompted many activists to go to jail rather than cooperate. Id. at 1182. As Senator Edward M. Kennedy astutely observed, under the [Nixon] administration, we have witnessed the birth of a new breed of political animal--the kangaroo grand jury-spawned in a dark corner of the Department of Justice, nourished by an administration bent on twisting law enforcement to serve its own political ends, a dangerous form of Star Chamber secret inquisition that is trampling the rights of American citizens from coast to coast. Washington Post, March 14, 1972, at 2, col. 3. Annas exploits are known around the country. See a story on Anna at http://www.rawstory.com/news/2006/FBI_confidential_informant_also_said_ to_be provacateur.html Mot.Dsm upon violation of First Amendment 18
14

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 19 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

suspicion of criminal activity. Such conduct, at FBI direction, is illegal as established herein above.15 The FBI is trained on and bound by the direction from The Attorney Generals Guidelines On General Crimes, issued September 2002 by former Attorney General John Ashcroft, available on line at www.usdoj.gov/olp/generalcrimes2.pdf There, at page 7, the Guidelines state that In its efforts to anticipate or prevent crime, the FBI must at times initiate investigations in advance of criminal conduct. It is important that such investigations not be based solely on activities protected by the First Amendment or on the lawful exercise of any other rights secured by the Constitution or laws of the United States. When, however, statements advocate criminal activity or indicate an apparent intent to engage in crime, particularly crimes of violence, an investigation under these Guidelines may be warranted unless it is apparent, from the circumstances or the context in which the statements are made, that there is no prospect of harm. Interestingly, this is the Executive Branchs view of what is lawful, and comes in September 2002, from John Ashcroft.
15

The days of former Attorney General Edward H. Levi are obviously over. In congressional testimony prior to release of the first Attorney General Guidelines, Attorney General Levi stated that the Guidelines proceed from the proposition that Government monitoring of individuals or groups because they hold unpopular or controversial political views is intolerable in our society. The Guidelines represented a significant shift in DOJs approach to domestic terrorism. For the first time, investigations of domestic terrorism were treated as matters for criminal law enforcement, rather than as avenues for intelligence collection. Quoted in DOIG report September 2005 at page 36. Mot.Dsm upon violation of First Amendment 19

Case 2:06-cr-00035-MCE

Document 127

Filed 12/19/2006

Page 20 of 20

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Next, at page 16 of the Guidelines, General Ashcroft directed the agents that Mere speculation that force or violence might occur during the course of an otherwise peaceable demonstration is not sufficient grounds for initiation of an investigation under this Subpart, but where facts or circumstances reasonably indicate that a group or enterprise has engaged or aims to engage in activities involving force or violence or other criminal conduct described in paragraph (1)(a) in a demonstration, an investigation may be initiated in conformity with the standards of that paragraph. The informant in this case most assuredly was not aware of the rules. And the FBI directed her in that ignorance. CONCLUSION For the above reasons, the defendant respectfully requests that the court dismiss with prejudice the indictment in this case. Respectfully submitted DATED: December 19 2006.

MARK J. REICHEL ATTORNEY AT LAW Attorney for defendant

/S/ Mark Reichel

Mot.Dsm upon violation of First Amendment

20