A Clipper Proves The Undoing Of A Mullet: Amish Hate Crimes Case Raises Fundamental Concerns Over Federal Power

GetImage.aspxThe recent conviction of Amish bishop Samuel Mullet Sr. in the Amish hair-cutting case raises renewed questions over the ever-expanding claims of federal jurisdiction.  Mullet was given 15 years in prison for federal hate crimes.  In order to do so, however, the Obama Administration had to establish federal jurisdiction.  They did so by building the case around the “Wahl battery-operated hair clippers” used to cut the beards of Amish men and insisted that federal jurisdiction followed the clippers which crossed state borders in their manufacturing and sale. The superseding indictment is linked below.

Mullet was convicted in September of organizing a series of raids in 2011 against religious enemies and disobedient family members. This was an intra-Amish dispute in which the men’s beards were forcibly sheared and women’s hair was cut. I have no problem at all with criminal prosecution for assault and other state offenses. However, the Justice Department insisted on getting involved as a hate crime. The 2009 Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act requires “an instrumentality of interstate or foreign commerce.” So, U.S. Attorney Steven M. Dettelbach, of the Northern District of Ohio, argued that the clippers used in the assaults “were purchased at Walmart and had travelled in and affected interstate commerce in that they were manufactured in Dover, Delaware.” The federal court accepted the argument which would render any limits on federal power meaningless for the purposes of federalizing what are state crimes.

In addition to Mullett, fifteen other Amish members were sentenced to prison terms of two to seven years.

The case could get more attention due to the role of Obama’s nominee for Labor secretary, Thomas Perez, in the case in his capacity as assistant attorney general for the Civil Rights Division of the Justice Department.

Since virtually all products travel across state borders, this theory gives federal hate crimes universal application. It further allows federal prosecutors to retry state defendants for essentially the same alleged acts by redefining the acts as hate crimes as opposed to assaults. It is a test of federal jurisdiction that cannot fail.

Here is the superseding indictment: 120328052727_Superseding Indictment filed

36 thoughts on “A Clipper Proves The Undoing Of A Mullet: Amish Hate Crimes Case Raises Fundamental Concerns Over Federal Power”

  1. For Evelyn.

    U.S. Uses Wartime Law to Push Cases Into Overtime

    The Justice Department is testing a novel argument to extend the clock in bringing cases of financial wrongdoing: We’re at war.

    Federal law typically gives prosecutors five years to bring charges after an alleged crime. But the Justice Department is under pressure from some in Congress to bring more cases, and handicapped by a shortage of resources it is turning to obscure laws dating to the World War II era and to the savings-and-loan crisis to buy itself more time.

    Prosecutors in Manhattan sued banking giant Wells Fargo & Co. in December for allegedly defrauding the Federal Housing Administration out of hundreds of millions of dollars by writing bogus loans and then concealing them from government guarantors. The statute of limitations had run out on much of the alleged wrongdoing.
    But the government said the usual time constraints don’t apply because a 1948 law called the Wartime Suspension of Limitations Act gives prosecutors unlimited time to go after alleged fraud during times of war. And the U.S., they argued, is currently at war—in Afghanistan.

    Wells Fargo, in a legal brief in February, said the allegations had “nothing to do with wartime contracting,” arguing that was the original context of the 1948 law. Wells Fargo also denies the underlying charges.

    Wells Fargo and the Justice Department declined to comment.

    The bank hopes a federal judge will take its side, but recent court decisions suggest otherwise. Judges have backed a broad interpretation of the law, allowing its use for cases ranging from tax fraud to government guarantees of farm futures contracts.

    The government invoked the wartime act 12 times between 2008 and 2012, as many as it had in the previous 47 years, according to data provided by LexisNexis. The increase could be due in part to a congressional amendment to the law in 2008 that slightly broadened it. The revision extended the amount of time after the hostilities are over that the statute of limitations runs to five years from three years. It also added language on what “at war” means, specifying that the law didn’t require an actual declaration of war to be used.

    “The DOJ is under a lot of political pressure to bring more cases and more-aggressive prosecution of financial-fraud cases,” said former assistant U.S. Attorney David Laufman, now a white-collar defense lawyer in Washington. “It may be that they are leaning farther in and fully exercising the full range of some of these statues.”

    Former Delaware Sen. Ted Kaufman, who led the congressional oversight panel created after the 2008 financial crisis, said he is in favor of prosecutors using “extraordinary means” to bring cases.

    But defense attorneys say prosecutors are contorting laws to serve purposes that weren’t envisioned by their authors. In the process, they are gutting long-established time limits meant to ensure charges are brought while evidence is still fresh and are preventing suspects from moving on with their lives, they say.

    “There’s usually some reason why the cases are straggling,” said David Anderson, a white-collar defense attorney in San Francisco. “They’re usually the weaker cases.”

    Lawyers at Clifford Chance LLP were perturbed by the use of the wartime suspension act in a case against their client, French bank BNP Paribas SA, which was accused in 2011 of defrauding a government farm futures guarantee program from as early as 2001.

    In a brief in February 2012, BNP said that if the court upheld the use of the wartime law, it “would lead to absurd results.” If the government’s definition of “war time” were applied to other conflicts, “the conflict in Korea may be continuing as a war to this day,” they wrote. The bank also has denied the charges.

    A judge in Texas allowed the government’s case to proceed last August. “The WSLA expressly applies to ‘any statute of limitations applicable to any offense,'” U.S. District Judge Sim Lake wrote in his order.

    Another tool the government has been employing to extend the clock is the Financial Institutions Reform, Recovery and Enforcement Act, passed by Congress in 1989 partly to bail out the country’s savings-and-loan institutions. The law allows the government to collect civil penalties for violations of criminal laws such as wire and bank fraud for up to 10 years after the alleged wrongdoing.

    More significantly, the law doubled the five-year statute of limitations for several crimes, including mail and wire fraud, when they “affect” a financial institution.

    In April, 2011, prosecutors in Connecticut charged Angelo Reyes with wire fraud for allegedly burning down a property he owned in 2005 to collect insurance money, well past the five-year statute of limitations for such a charge. Prosecutors said that Mr. Reyes indirectly affected a financial institution—the bank that made the loan on the property. Mr. Reyes has pleaded not guilty and is awaiting trial.

    Since 2008, the government’s use of that law has more than doubled, according to the LexisNexis data. It was used an average of 6.6 times a year between 2008 and 2012, compared with 3.1 the prior decade.

    The government needs extra time because prosecutors diverted resources from white-collar cases to focus on national security after the Sept. 11, 2001, attacks, said Rick Morgan, a former attorney for the Justice Department’s civil division. “The investigative machinery ground to a halt,” he said.

    Justice Department statistics show that after 2001, investigative agencies began “referring” fewer white-collar crime cases for prosecutions. By 2006, the number was down 64% to 7,761 referrals, according to data from Syracuse University’s Transactional Records Access Clearinghouse.

    The average time between a white-collar referral and a court filing in 2012 was 336 days, compared with 271 the prior year and 322 in 2001.

    The Justice Department said it doesn’t track data on how long it takes, on average, to bring indictments after the initial alleged criminal conduct.

    To be sure, the government always has looked for ways to extend the statute of limitations, such as “tolling agreements,” in which defendants agree to extend the normal limits on a case in hopes that the government, upon further investigation, will decide to drop the charges.

    Not all of the government’s attempts to lengthen the statute of limitations have been successful. The Supreme Court in January rejected the Securities and Exchange Commission’s attempt to extend a five-year statute of limitations on securities violations.

    In 2008, the SEC sued a former money manager and an executive at Gabelli Funds LLC, six years after they allegedly participated in a market-timing scheme. The two men argued the SEC had missed its deadline by a year. But the agency argued it had extra time because it didn’t discover the conduct until 2003—an argument endorsed by the lower courts.

    However, the Supreme Court ruled against the SEC, a decision that could threaten its efforts to pursue older cases. In its unanimous opinion, the court quoted former Chief Justice John Marshall, who said that doing away with limitations “would be utterly repugnant to the genius of our laws.”

    Defense attorney Susan Brune, who isn’t involved in the Gabelli case, cited a more-practical reason for statutes of limitation: The human brain. “With these old fact patterns, many witnesses cannot be blamed for saying ‘who remembers anymore?’ ”

    Write to Reed Albergotti at reed.albergotti@wsj.com

    A version of this article appeared April 16, 2013, on page C1 in the U.S. edition of The Wall Street Journal, with the headline: U.S. Pushes Cases Into Overtime.

  2. Some people above say that hate crimes are a bad idea. I guess it depends on where you stand. Say you are at some place in Europe in 1945 and the Allied troops are just up the road but you are in line to be gassed in some gas chamber by some Nazi German Storm Trooper for being a Gypsie. I guess you would have a bone to pick over a hate crime. We dogs in the dogpac dont like humans who hate dogs. When these humans run over dogs on the road for sport because they hate dogs they ought to be prosecuted. All we can do is go poop in their yards. Victims of hate crimes need a prosecutor and a state to step in and protect them from the nazi and Amish people out there. If ya see some Amish bearded guy with a pair of scissors watch out.

  3. When the Klan comes out and kills some guy because of the color of his skin and the state and county do nothing the folks in that state say oh ho hum. But if the feds come in and prosecute the Klan members in Federal Court then the foks in that state rant and rave about States Rights! When they rant States Rights! they do not bother to put an apostrophe after the t and before the s. What those follks are confused about in our constitutional construct is the delinieation of “rights” and “powers” in our Constittution. The Federal Government has Powers. The States each have Powers. The individual people within the lower 48 and it is said Alaska and Hawaii as well, have “individual rights”.

    That backdrop is relevant to the intrusion of the Federal Government with an exercise of their Power to prosecute an individual for having a relgious based prejudice which results in the commission of a “hate crime”. The notion that the Federal Jurisdiciton is righteous because the tool used by the Amish hair cutting hater had travelled in interstate commerce seems lame. Every gun used in every crime in every state, including Alaska and Hawaii, has traveled in interstate commerce. This notion would federalize all crimes in which some tool was employed. About the only one who gets off is the Boston Strangler for using twine made on Beacon Hill.

    It is interesting, perhaps tedious, that JT once again posits the blame for this prosecution on the Obama Administration. Yes it is a federal prosecution and Obama is President. It is kind of like blaming the Holocaust on von Hindenburg. Well, maybe we should on that score. And maybe the Patriot Act is attributable to Midland Bush just like the Reichstag Decree is attributable to von Hindenburg. Presidents should be held accountable for the bigger fish that get fried. But I am not sure that Obama spent five minutes of his time pushing for the prosecution of these Amish thugs out in Transylvania or where ever this was.

  4. And this is the kind of thing that, absent being a reader of Turley blog, most would never know about, and this is how it comes about (the loss of our freedoms, the power of the state above all), not with a cry but with a whisper.

  5. Figures the article in the WSJ is paid only. It would be interesting to read the whole thing.

    It’s a stretch to say that we are at “war” in Afghanistan….unless you are one of the people who don’t believe the Constitution matters. My memory might not be great, but I seem to remember in history class that Korea and Vietnam were not “wars” either, but “police actions” in conjunction with the UN. (please correct me if I am remembering incorrectly)

    How much more evidence do the citizens of this country need to see before they realize they are not living in the country they think they are?

    100 mile “border” search zones, drone killings, outrageous prosecutions of “petty” crimes while the fat cats who handle the cash for terrorists and drug lords go free. I could go on, but have to get back to working for a living.

  6. I am reminded fondly of Justice Douglas’ impassioned plea for standing for groves of trees etc. in his famous dissent in Sierra Club v. Morton:

    Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole – a creature of ecclesiastical law – is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

    So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction…..

    The voice of the inanimate object, therefore, should not be stilled….

  7. All crimes are Federal crimes at this point, since there is almost 0 chance that SOMETHING involved in a crime came from the same state that it happened in.

  8. The WSJ has an article today about the Federal government getting around the statute of limitation on crimes by using the war exemption.

    Briefly, there is a statute that says that if the U.S. is at war, the statute of limitations on federal crimes is waived. The judge approved this claim because of the war in Afghanistan.

    Theoretically, the Korean War is still being waged; the peace is just an armistice – a suspension of hostilities; that means that any crime since 1950 effectively has no statute of limitations.

    Too clever by half.

    The feds are essentially taking Humpty Dumpty’s position:

    “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

    Through the Looking Glass.

  9. The Wahl link is beyond tenuous, it is too tortured to be considered.

  10. I hate to say this but when government punishes the Amish punishers for being hateful then government is hateful. And if government is hateful then all of the people (in whose name crimes are punished) are hateful. If The People of The Great State of Texas prosecute a man for murder and then kill the man as his punishment, then all of the People are guilty of a gross violation of the Sixth Commandment: Thou Shalt Not Kill. Nothing more hateful than killing. A hate crime coupled with the Sixth Commandment gets the citizen into hell just for being a citizen. Its kind of like being a quiet Amish member. Just remember this if you live South of the Mason Dixon Line: “Y’all Can” is not an exception to the Sixth Commandment. Hate crimes are in the eye of the beholder. Saint Peter ain’t got no tolerance for haters.

  11. The Federal Nanny State has and will continue to rear its ugly head….. Maybe Aaron Burr was on to something…..but we know who won that one…. Just look on a 10 dollar bill….

    This is purely a secular crime….. But hey…. The Nanny State is abundant…l

  12. Hate crimes are a terrible idea. Charge people for actions committed or planned, not thoughts. These guys certainly committed an assault, that is all it was, an assault.

  13. Wahl is based in our town, but they have factories in other countries too. (Wife works there.)
    So all of them aren’t made here anyway…and using that as a hate crime seems over the top, especially in a situation involving religion.

Comments are closed.