marriage.

page 20, lines 622-624 It is untrue that my better spirits was

due to the Blakely and Booker decisions. Instead, I felt, and

feel, that justice will be done and the solicitation conviction
will be thrown out and I will be vindicated as the innocent man
that I am.

page 22, lines 676-677 $6000 of the $6150 is not actually my

money but comprises--so my former counsel Timothy Murphy told
me-~a trust for purposes of my defense only. I only QoReeee
approximately $150, if that. My father has provided my upkeep

since my arrest.

I have tried to address the Presentence Investigation Report
as thoroughly as possible in the time allotted to me (I only
received it on November 2nd)and hope that I have made my case
well for a sentence falling within the 78 to 97 range not
counting the downward departures I have requested. I thank
the Court for its consideration. As the Court is aware, the
difference between 78-97 months and life is stark indeed.

Respectfully submitted,

Matthew Hale

Dated November 4, 2004 ;

Addendum: I wish to note that the Offense Level for Obstruction
of Justice was 12, not 14, when my alleged crimes took
place.

Also, there were many clerical errors in the typed
version of my version of the offense not present in the
handwritten originals.

17



mant to murder only after two years of pressure. When a court
finds an atypical case, “one to which a particular guideline
linguistically applies but [the] conduct significantly differs
from the norm, “a departure may be warranted." United States
v. Furkin, 119 F.3d 1276, 1283 (7th Cir. 1997).

Even if the phrase "conduct significantly differs from the
norm" is viewed narrowly, without any regard for the two years
of the government informant pressuring me to commit a crime,
my conduct still significantly differs from the norm. Where
did I ever ask Evola to kill anyone? Where did I ever tell
him to kill anyone? Typical solicitation cases are very
different fax from this one. The transcriptsxfax of 12/5/02
and 12/17/02 beg the question: where is the solicitation?

At most I allowed Evola to do what he wanted and said "Good".
If my conduct wasn't atypical as far as solicitation cases

go, it is difficult to conceive of what would be. The typical
solicitation case is where the defendant says something iis
like, "hey, I want you to kill someone. Here's $1000 isxx

if you'll do it." This case is nothing like that at all. And,
I submit that even the government would have to agree with me
on that.

I therefore humbly request a downward based on the manifestly
atypicality of my alleged conduct.

V. A downward departure based upon the extraordinary conditions
of my confinement is also warranted.

Pursuant to 18 U.S.C. sec. 3553(b) and U.S.S.G. sec. 5K2.0,
I wish to also ask for a downward departure based upon the

extraordinary conditionsi of my confinement. Courts have held

11


conversations and E-mails with him during this time. oe

5. That never =| I have known Reverend Matthew Hele has he ever avocated or encoiuaged

6. That he has 1 never, special advocated or encouraged an. act of violence, : fo

7. That. Reverend Matthew Hale is absolutely commited to legal and peaceful change.

8. That when the Ben Smith shootings occurred, Reverend Matthew Hale told me specifically °
that Ben Smith’s acts were not only a surprise, but a blow to the reputation of our church.

9. That Reverend Matthew Hale told me that the church’s position on the shootings was that we
condemn them, but not Ben Smith personally.

10. That as a minister in the church, I am extremely familiar with Nature’s Eternal Religion and
The White Man’s Bible, two Bibles of our Creativity religion, and have studied the teachings
contained within these books extensively.

11. That no where in these Bibles or any other Bibles of our faith is there any advocacy of.
violence if our Constitutional Rights are taken away.

12. That our teachings make clear that we only advocate violence in self-defense if violence is oe
used against us us to take away our Constitutional Rights.

13. That 1 was one xe of the recipients of an E-mail from Reverend Matthew Hale on 1 1/29/02
entitled “Absolutely Confidential”, my Es mail address being “crevpeterson@hotmail.com:

14. That this E-mail contained an article written by Reverend Matthew Hale entitled “Rigged
Court System Declares War on Church”. :

B



Neither 18 U.S.C. sec. 1503 nor 18 U.S.C. sec. 373 were
listed by Congress as federal crimes of terrorism. While the
Probation Office states that "[a]n extensive review of the
applicable case law reflects that the twelve-level enhancement
may be applied, even though the defendant was not convicted of
a statutorily-enumerated federal crime of terrorism," she
doesn't cite a single case to this effect and in fact, the law
of this district is that the enhancement may not be applied
unless the defendant was convicted of a statutorily-enumerated
federal crime of terrorism (see U.S. v. Arnaout, 282F.Supp. 2d

838, 843-845, attached). As Judge Conlon stated:

In sum, Congress has specifically and exhaustively identified
criminal offenses that constitute federal crimes of terrorism.
Those specifications control application of sec. 3A1.4. Further,
Congress clearly intended the revised terrorism guideline to be
"applicable only to those specifically listed federal crimes of
terrorism, upon conviction of those crimes with the necessary
motivational element to be established at the sentencing phase
of the prosecution." Conference Report on $.735, 142 Cong. Rec.

H. fay. sec. 730, Directions to Sentencing Commission [Emphasis
added].

(Blakely and Booker of course now require that a jury find the
necessary motivational element, which has not been done in this
case). I was not convicted of violating 18 U.S.C. sec. 1114 and
thus the terrorism guideline is inapplicable. The plain language
of 18 U.S.C. sec. 2332 b(g)(5)(B)(i) requires a violation of one
of the enumerated crimes. While there was a jury finding that I
violated 18 U.S.C. sec. 373 and 18 U.S.C. sec. 1503, these are

not federal crimes of terrorism.



ek US Ww ARNAOUD 80 843:
Cite as 282 F.Supp.2d 838 (N.D.UI, 2003)

$66,991, one-half of the governmentigsesti-
ate: Def. Supp Br: at Mu, ed

for Chéchéri-hand and foot warmers

ibe items donated to the Bosnian

eabotal to'the fralid ‘totals $31, 624 ($248,-

6, 991] and results itt'the addition:
, to thie sentencing itideline

Cy},
uurt“Rotes’ that adopting the’ govern-
ene's full” $133: 982° estiniate’ would rot’

highest criminal. history category even
: though‘he has.no prior arrests or convie-
tions..: Based on. his_actual criminal histo-
ry, Arnaout falls in Category 1.4 hg
the terrorism: ‘enhaticement in its pres”
ént form is a relatively new guideline, pro-
milgated by the United Sentencing Com-
mission as" an emergency’ amendment in
November’.'1996. ‘Sentencing Guidelines,
Appendix C, Ainendment 589. The
aitiéridment responded to a congressional
directive that the’ existing’ international
terrorism guideliné ‘be ‘defined more
broadly to ihelude only federal crimes of

terrorism. \ Antiterroristii' and Effective:
Death’ Penalty Act of 1996 § 730, Pub.. i.

104-132;"110 Stat. 1303. + ine

As reflected, in, "Application Note t of.
§ 3AL4, federal crimes of, ae are

In addition, the offense: ast e a violation
of, one of alist of sp fied offenses: de-
struction, of, aircraft or. aireratt facilities;
violence at international airports; arson
within special ‘maritime and territorial ju-
risdiction; piological Weapons; chemical
weapons; congressional, cabinet, and Su-
preme Court assassination and Kidnaping;

‘and ‘poinbing ‘of Government property

ig or causing death; arson ‘atid bomb-:

ing of pr perty. used in interstate

kidnap, | or maim petsons abroad; protec-

tion. of ¢o1 ters; Killing , or attempted.

4." A prisoner's criminal bistory category has'aTM

direct effect on the designation of the facility
by the Bureau, of Prisons and. the conditions
of his,incarceration,

on
ft
a
a
—
=
=



nuk U. U.S. ARNAOUT

845

Cite a3 282 F.Supp.2d 838 (N.D.It, 2003)

concluded that the objects. of tO syifesise of.
conviction—conspiracy—constitufed:feder-
al.crimeg, of terrorism, andthe terrorism.
enhancement could. be applied on,that ba:
is. Jd: ab 518-19... A. vigorous dissent,
found. application. of, the .terrorism en-
hancement,,unsupportable.,on the record
and under fhe.clear terms of § 2882b(g)(6)
and: its, legislative history... Id. at 528-37.

[4] | The divided Graham ‘opinion is nei*
ther binding authority” on this® court ‘hor
factually analogous to thig:case.::Even if
this, court:followed :the, majority’s question~

able, redrafting of § 2332b(g)(65), the rack-:

eteering fraud conspiracy. offense of, con:
viction. is. not, predicated, on: any, terrorist::
conduct enumerated in that,,statute.. ‘The
government. has; not, established. that, the
Bosnian, and, Chechen..recipients:of BIF
aid were. engaged in, a, federal crime..of
terrorism,, nor that,Arnaout intended the
donated;.boots, uniforms, blankets, tents,;
xtay,..machine, ambulances,” nylon., and
walkie-talkies,;to, be os d... to mromgia a

dit ‘of the’ ter-

rorism’ enhancerhént to “conduct” beyond
\ the offense’ of:conviction; the Sentencing
Commission lacks: authorityto preempt.
the specific. directives of Congress. .: Unit-.
id. States vi LaBonte, 520 US. 751, 757,
117. S.Ct..1673;, 18%:L.Ed.2d> 1001 9%,

Finally, in 2002, the Sentencing. Commis-
sion -. obviated any ambiguity. , about

§:3A14’s use ‘of-the phrase in issue by
striking Application. Note 1 containing the
“involvéd; or was intended to’ promote”
language’ and’ inserted: in n its Place the fol-

‘Federal Crime a Terrorism? Defined.
guideline, ‘federal

f te the meaning giv-

“en that term in 18 U.S.G, § 2332b(g)(6).

Actordingly; the ‘court ‘onchades that
§°3A14 does’ not apply 'to a racketeering
offense because it'ls not a federal crime of |
terforisih ‘as defined by’ § 23820(8)(6).

Obstruction of J tice. uo

“Alternatively, the government, “invokes
Application Note .2 as.a basis for applying
§ 8A1.4 because Arnaout’s relevant con-
duct, ineludes: obstruction. of justice. At
the. June 16th sentencing hearing, the
court determined that. a two-level enhance-
ment under. § 8C1.1 for: attempted ob-
struction of justice applied, based on two
declarations under penalty of perjury Ar-
naout signed, and filed in. Benevolence In-
ternational Foundation, Inc., v. John Ash-
croft, et al., 02:0 0763 (Judge Alesia). GX
15, Declaration. of Enaam,Arnaout execut-
ed:March 22, 2002; GX 16, Corrected. Dec-
laration of Enaam Arnaout executed April
I, 2002. The two declarations are identical
in.all material respects. Arnaout’s decla-
rations were‘submitted in support of BIF’s
motion for ‘a preliminary injunction seek-
ing release of BIF assets frozen by the
government. several. months earlier under
the International Emergency Economic
Powers Act, 50.U.S.C, §§ 1701-06, This
legislation: empowers the Department of
the Treasury to.take.such action against
persons or groups who plan, authorize, aid
or engage in. hostilities or attacks against
the United States... '



Nor is the government's legal training argument for upward
departure well founded since it doesn't take any legal skill to
be cautious about what one says. Nor is there any evidence at
all that I "was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise ex-
tensive." Thus gection 3Bi.1(a) is factually inappropriate
as well,

As for an upward departure pursuant to sec. 3A1.2, Application
Note 5, as with the others, it is legally barred by Blakely and
Booker. It is further factually inappropriate because there
was no evidence at all that my alleged crime was motivated by
Judge Lefkow's status as a judge, which is required by the
guideline.

In conclusion, there was no jury finding allowing any of
the upward departures the government seeks. Further, there is
no evidence supporting the imposition of these upward departures.
Thus my sentencing range remains 78 to 97 months not counting

the downward departures I have requested.

VIL. Other corrections (not including my denial of guilt on my
convictions) to the Presentence Investigation Report.

page 9, lines 298-314 The idea posited by FBI agent Sara Lopez

that Evola never initiated discussions about harming someone is
absolutely preposterous. See the transcripts attached to my

Supplemental Memorandum to Defendant's Version. It is further

untrue that I ever initiated such discussions with Evola.

page 10, lines 315-318 Evola was talking about a lawyer on

December 5, 2002 and not Judge Lefkow. The FBI deliberately
tried to conceal this fact by inserting a comma between "lawyer"

15


you trust them hardly means that you actually do. It was Evola
in fact who would occasionally ask me if I trusted him (appar-
ently on instructions by the FBI to get me to say on tape that

I trusted the man for later use in its hopeful prosecutions) and
I simply responded to him in a manner that would not hurt his
feelings as most people would if asked that question.

In any case, Fox is hardly a credible witness on this point
as borne out by the jury's verdict and I did tell Fox in fact
shortly before my arrest that Evola was probably an informant-
as I told Reverend Peterson (see exhibit 6, #18 of his
affidavit). I further told the FBI when I was arrested, "I've
suspected that he (Evola) was sent by you guys." (see record
from trial, portion involving potential testimony from FBI
agent Mike Evans). There is thus not a preponderance of
evidence that what I wrote Fox was untrue.

C. The "Terrorism Adjustment" (pp. 12-13).

The terrorism adjustment is factually inapplicable because
there was no evidence at trial that my alleged crime was
“calculated to influence or affect the conduct of government
by intimidation or coercion, or to retaliate against govern-
ment conduct." The evidence, in fact, was that Judge Lefkow
had ruled in my Church's favor and that she was ordered by
the 7th Circuit Court of Appeals to issue her order of Novem-
ber 19, 2002. Further, the evidence is that I secured a
trademark on another name, thereby demonstrating my interest
in complying with her order. Since there was more evidence
that my alleged crime was not calculated to influence or
affect the conduct of government by intimidation or coercion,

8



*The government may be tempted to argue kkqak that since
the jury found beyond a reasonable doubt that I "endeavored
to influence, intimidate, or impede" Judge Lefkow that the
“by intimidation" segment of 3A1.4 has indeed been found
beyond a reasonable doubt. This is false, however, for we
don't know which the jury found beyond a reasonable doubt.
Did it find that I endeavored to influence beyond a reason-
able doubt? Did it find that I endeavored to impede beyond
a reasonable doubt? Or, did it find, as the government
would wish, that I endeavored to intimidate beyond a reason-
able doubt? Since the phrase “endeavored to influence,
intimidate, or impede" is disjunctive, the jury could have
found only one of them beyond a reasonable doubt and we simply
do not know which one it was. Thus there was no clear jury
finding allowing the imposition of the guideline regardless

of however way it is interpreted.



As noted earlier, there was no jury finding that my
alleged offense was "calculated to influence or affect the
conduct of government by intimidation or coercion, or to re-
taliate against government conduct." This is so regardless
of the fact that the jury did find that I "endeavored to
influence, intimidate or impede Judge Lefkow" and that I acted
"with the purpose of wrongly impeding the due administration of
justice" as elements of Count Four since there was still no

jury finding that my actions were "by intimidation or coercion."

There was no evidence at trial that I intimidated or coerced

Judge Lefkow, let alone a jury finding beyond a reasonable

doubt to that effect. *(see also next page, 5a)

In summation, the Terrorism Adjustment in legally inapplicable
for the following reasons:

1) there was no jury finding that I committed an offense
that was a) "calculated to influence or affect the conduct of

government by intimidation or coercion, or to retaliate against

government conduct" and b) no jury finding that I violated one
of the listed offenses in 18 U.S.C. sec, 2332b(g)(5)(B)(i).

2) the law of this district is Arnaout, which precludes
applying the guidelines to crimes not specifically listed in
18.U.S.C. sec. 2332b(g)(5)(B)(i).

3) to impose the Terrorism Adjustment in this case would be
against the intent of Congress

4) to impose the Terrorism Adjustment, with its penalty of
life imprisonment, would be wildly disproportionate to the

conduct I was convicted on and my lack of a previous criminal

record.



and " "

rat" in its transcript.

page 10, lines 319-321 As far as "manipulation" is concerned, I

learned on October 26, 2004 during a visit with my parents that
government witness James Burnett asked my brother David Hale to
tell my father that he was sorry for testifying at my trial and
that he simply said (falsely) what the FBI wanted him to say out
of fear. I submit that it is the FBI that has been doing the
manipulating, not me.

page 16, line 500 Just for clarification, the flag I set fire
to was not an American flag.

page 17, lines 522-524 The police officer had ordered me into

the back of his squad car and proceeded to ask me questions. When
I asked to see an attorney, he told me that I had no right to one
and that I had to answer his questions. He didn't give me my
Miranda rights. After 30 minutes in his squad car telling him
that I didn't want to answer, I finally told him that I didn't
know if my brother had a gun or not. I was then arrested for
Obstruction of Justice. The appellate court naturally and rightly
threw out my conviction in a unanimous decision.

page 19, line 570 I actually lived off campus.
page 19, lines 572-576 The Character and Fitness Committee of the

Illinois Bar claimed that my religious and political beliefs would
interfere with my ethical practice of law. I totally disagree and
note that when I worked in Champaign, Illinois, I dealt with the
firm's nonwhite clients and had no problem doing so at all. I
have been and will continue to follow the law and whatever rules

bind my conduct.

page 19, line 579 Peggy's daughters were from her previous
16



matter of law and linguistics. A threat is a communication,
not an act, at least for purposes of this guideline. Other-
wise, every crime of violence could be subjectively labeled
a "threat".
E. The "Victim Related Adjustments" on page 14--why they
may not be imposed.

I wish to incorporate I.A. above herein.

II. Why None of the Enhancements and Upward Departures Posited
by the Probation Officer are Factually Appropriate Even If

Blakely and Booker were Not the Law.

A. The "Victim Related Adjustments" (page 11)

There is no evidence that my offense of conviction was motiva-
ted by Judge Lefkow's status as a judge. In other words, there is
no evidence that I solicited her murder because she was a judge.
Instead, the government alleges that it was one of her court
orders that motivated me. This is not the same as committing the
crime because of her status. Judge Lefkow had presided over the
case for two years and there is simply no evidence at all that
I suddenly wanted her dead because of that status. Thus this
adjustment would be factually inappropriate.

B. The "Adjustments for Obstruction of Justice" (p. 12)

The Probation Officér has her facts wrong. I only told Fox
in my letter to him to tell the media that I suspected that
Evola was a spy all along and this can hardly be considered
obstruction of justice. Further, while she quotes me as saying
about Evola "yeah, I trust you" (in response to Evola's question,

"And you do.trust me, right"?, I note), telling a person that



a call for violenc

21. That Reverend Matthew Hale routinely used militant language ‘and has told me that he: did
this to get media attention for our Church and rally our adherents. :

22. That I was slated as.a witness at Reverend Matthew Hale" s ‘trial, would have testified to all of
these matters if called, and will testify to them if called in the future.

Further, affiant sayeth not.

Signed and sworn an this 3 Day of July, GOO 7

Slole Yiscen sive

Reverend Christépher Lee Peterson



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,
ve No. 03 CR 011
MATTHEW HALE, Judge James T. Moody

(sitting by designation)
Defendant.
NOTICE OF FILING NOV 19 -o4
By U.S. Mail to:

Judge James T. Moody M. David Weisman
United States District Court Asst. United States Attorney
Northern District of Indiana 219 S. Dearborn Street
5400 Federal Plaza 5th Floor
Hammond, IN 46320 Chicago, IL 60604

Carol Anne Bozarth
U.S. Probation Officer
55 E. Monroe St. Suite 1500
Chicago, IL 60603
PLEASE TAKE NOTICE THAT on this 5th day of November, 2004,
I mailed for filing with the Clerk of the United States District

Court for the Northern District of Illinois at Chicago, Illinois

the attached Defendant's Position Paper as to Sentencing Factors

for filing, a copy of which is hereby served upon you.

Respectfully submitted,

MATTHEW HALE, PRO SE

Matthew Hale #15177424
Metropolitan Correctional Center
71 West Van Buren St.

Chicago, IL 60605

Ate


*Nor can it be said that my offense was calculated to in-
fluence or affect the conduct of government by intimidation
or coercion as_a whole. There was no evidence at all that I
wanted the Federal Government to change its policies by virtue
of my alleged crime and Evola himself said "the way it's gonna
be done, nobody's even gonna think about us doin’ it, but it's
gonna be done. It's not like I'm gonna do it and drop our flag
on top of her." (12-17-02 transcript, p. 20, lines 20-26). In
other words, there was to be no "claim of responsibility" as
real terrorists use in their hopes to “influence or affect the
conduct of government by intimidation or coercion." There
would have been no impact on the conduct of government had
Judge Lefkow been murdered, by intimidation or coercion, with-
out the government having any idea why she was murdered. Plus,
there is no evidence at all that I hoped to obtain a better
ruling from another judge or even discussed such a thing.

Thus for the myriad reasons stated above, the imposition of
the Terrorism Adjustment would be factually inappropriate. I
neither intimidated or coerced Judge Lefkow, sought to intimid-~
ate Judge Lefkow, nor intimidated or coerced the government

as a whole, nor sought to do so,

9a



or to retaliate against government conduct than the reverse,
the enhancement should not be applied. Further, once again,
there is no evidence at all that I intimidated or coerced
Judge Lefkow or sxgm that my alleged crime was calculated to
do so. My alleged crime simply was not an act of terrorism.
Why "retaliate" against Judge Lefkow for something she had
nothing to do with?*(see next page)

D. The "Specific Offense Characteristic" Adjustment (p. 13)

This adjustment is factually inapplicable because there
is no evidence at all that I caused physical injury to Judge
Lefkow or threatened to cause physical injury to Judge Lefkow.
(I wish to incorporate the contents of 1.D. above herein).

E. The "Victim Related Adjustments" (p. 14)

I wish to incorporate the contents of II.A. above herein.

Conclusion
All. of the adjustments <enhancrwenksxandxupwakdxdepaxkuxesd
posited by the Probation Officer in her Presentence investigation

Report are barred by Blakely v. Washington and United States v.

Booker and are further factually inappropriate. This is so for
all of the reasons above. As a.consequence, my base level and
final level for sentencing remains at 28 with a criminal history
category of I. My sentencing under the Guidelines should thus

be in the 78 to 97 months range.

IV. A downward departure, however, is warranted due to mitigating
circumstances.

Under U.S.S.G. sec. 5K2.0 and 18 U.S.C. sec. 3553(B), a

district court may depart from the applicable Guideline range
Ww
9



D. Why the "Special Offense Characteristic" adjustment may

not be imposed.

Once again, Blakely held that any fact which is neither
admitted by a defendant nor found by a jury beyond a reasonable
doubt may not be used to increase the defendant's sentence.
Booker squarely applied this holding to the Federal Guidelines.

The Specific Offense Characteristic posited by the Probation
Officer on page 13 of the Presentence Investigation Report could
only be applied if the jury had found that "the offense involved
causing or threatening to cause physical injury to a person, or
property damage, in order to obstruct the administration of
justice." There was no such finding. "Causing or threatening to

‘is not

cause physical injury to a person, or property damage,
an element of 18 U.S.C. sec. 1503 and nor was there a jury
finding otherwise that I caused physical injury to Judge Lefkow
or that I threatened to cause physical injury to her. As
defined by Black's Law Dictionary, sixth edition, a threat is
"a communicated intent to inflict physical or other harm on any
person or on property." There was no jury finding that I
communicated such an intent. When a person "threatens" another
with physical harm, that person is attempting to put the other
in apprehension of harm. If I had threatened Judge Lefkow with

personal injury, I would surely have been charged with that. I

didn't and I wasn't.

I understand the impulse to consider a solicitation convic-
tion a "threat to cause physical injury" but I submit that a

solicitation and a "threat" are very different concepts as a

6


Cone Pies

282 FEDERAL SUPPLEMENT, 2d SERIES

killing of officers and employees of the
United States; murder or manslaughter of
foreign officials, official guests or interna-
tionally protected persons; hostage taking;
destruction of communication lines, sta-
tions, or systems; injury to, buildings or
property within the special maritime and
territorial jurisdiction of .the United
States; destruction of an energy facility;
Presidential and Presidential staff assassi-,
nation and kidnaping; wrecking trains;

terrorist attacks and other acts of violence.
against mass transportation systems; de-;

struction of national, defense materials,
premises, or utilities; ,violence.,. against,
maritime. navigation and fixed platforms;
homicides and other violence against: Unit-
ed States, nationals occurring outside the
United ‘States; use of weapons “of mass
destruction; ‘acts of terrorism ‘transcend-

Aimaout stands .corivicted of conspirai
to comsitdracketéering, in; yiolation of: 18: !
§ 108) Arnaout's offe

the phrase “a felony that, inv
intended, to promote, a fede

apply only to ‘fe feral
The governm nt relies on a

ing national boundaries; bombing of public

places and facilities; harboring terrorists;

providing material support, to terrorists or
terrorist organizations; financing ‘of ter-
rorism; torture; sabotage of nuclear facili-
ties or fuel; aircraft piracy; assault on a,
flight crew with a dangerous weapon; ex-
plosive or incendiary devices, or. endanger-
ment of human life by means of wéapons,
on aircraft; homicide’ or attempted homi-
cide on aircraft; and destruction of inter-
state gas or hazardous liquid pipeline facil-
ity. re yi

exhaustively. identified, criminal , offenses
that constitute ‘federal crime

§ ALA. Further, Congress dearly intend-
ed ‘the revised terrorism guideline to ‘be
“applicable only to those specifically listed

federal crimes of terrorism, upon conyic-.

tion of those crimes ‘with the necessary
motivational element to be established at
the, sentencing phase of the prosecution.”
Conference Report on S.735, 142 Cong.
Rec. H. 3805-01, § 780, Directions to Sen-
teneing Commission [Emphasis added].

in sum, Congress has ‘specifically and,

mn, for conspiracy to possess Sh .
chine guns, threaten to assault and muri
federal officers and employees, to forcibly.
assault, resist, oppose, Ampede, intimidate
and interfere, with, federal officers when
they were, engaged in their, official duties,
and,to mali igusly damage and destroy and
attempt, to. damage and destroy. by means
of an explosive a building, or.other real or
personal property used in interstate com-
merce. Jd. at 51)
cy offenses under, 18 Us. § 871are ‘not
included jin the statutory, ‘lst, of federal
crimes of terrorism, 5

terrorism. Jd. at 515 majori
divided appellate ° panel agreed wil
district court's, conclusion that the nature
of Graham's conspiracy conviction, was. sl
ficiently analogous to the. terrorist,..a¢
listed in § 2832b(g)(5). In the specific
context of the Graham case, the majority



Presentence Investigation Report requires a jury finding that I
committed an offense that 1) was "calculated to influence or
affect the conduct of government by intimidation or coercion,
or to retaliate against government conduct" and that 2) I
violated one of the listed offenses in 18 U.S.C. sec. 2332b
(g)(5)(B)(i). There was no jury finding of either of these
propositions. Thus the Terrorism Adjustment is barred by
Blakely and Booker.

(it is further of note that the Probation Officer wrongly
attempts to add 12 points to the base level of 28 for 18 U.S.C.
sec. 373 when it is my conviction under 18 U.S.C. sec. 1503
(Count Four) that is the basis for her claimed adjustment.

In other words, even if it were somehow found that the jury in
its verdict had found the elements of a federal crime of
terrorism and it was otherwise permissible to apply this
adjustment (the law of this district says that it isn't, as
discussed below), the 12 points could only be added to the
base level of 14 for Count Four, not the base level of 28 for
Count Two, for a level of 26. This adjusted level of 26 for
Count Four would of course be lower than the base level of

28 for Count Two and thus the base level of 28 would be the
level applied. In any case, the Probation Officer wrongly
attempts to use my conviction for Obstruction of Justice in
an effort to have the Terrorism enhancement imposed when it
(the conviction under Count Four) is twice removed from those
crimes listed as federal crimes of terrorism by the statute.

"Bootstrapping", I believe the term is.

3



that if a defendant has been under extraordinary pre-sentence
confinement conditions, this may in an appropriate case be a ba-

sis for a downward departure. United States v. Carty, 264 F.3d

191, 196 (2d Cir. 2001); United States v. Mateo, 299 F.Supp.2d

201 (S.D.N.Y. 2004). Similarly, if a defendant is likely to
encounter extraordinary conditions of confinement while in
custody after sentencing, this also is a permissible ground

for a downward departure under proper circumstances. See Mateo,

supra, and cases cited therein, including Koon v. United States,

518 U.S. 81, 116 S.Ct. 2935 (1996), and United States v. Wilke,
156 F.3d 749 (7th Cir. 1998).

I am under Special Administrative Measures (SAM's) restric-
tions and apparently will continue to be under these restrictions
for the indefinite future. These restrictions make the conditions
of my confinement extraordinarily harsh compared with that of
other inmates. Other inmates get visits more often, get contact
visits, more phone calls, read daily newspapers, and in general
population get to play board games, watch television, etc.

In contrast, I am locked in my cell 23 hours a day in solitary
confinement. I am not allowed to speak to other inmates. I am
not allowed to read current newspapers or magazines. I have no
television. I am only allowed visits from my immediate family,
and I am not allowed contact visits. I am not allowed to speak
to the press. I am allowed to speak on the telephone only with
my immediate family members, and only for 15 minutes a week. I
am allowed one two hour non-contact visit from them every two
weeks. Further, if anyone I write posts my letter on the In-
ternet without my knowledge, they are forever banned from

«K
12


having Special Administrative Measures imposed upon me should be
defined as "collateral incarceration penalties." (77#5 75

I thus request a downward departure from the otherwise
applicable sentencing range due to the extraordinary conditions
of my confinement.

VI. Why the government's position that there should be upward
departures is legally,and factually in error. (page 25)

The government's position that an upward departuee is warranted
based on sec. 3B1.3, Abuse of a Position of Trust is legally
barred by Blakely and Booker because there was no jury finding.
However, even if this were not the law, it would be factually
inappropriate in this case. The idea that I abused my position
as a minister and as someone with legal training is absolutely
absurd. The evidence in this case shows clearly that I told
Evola that I was his minister because I was and that I told him
that I wouldn't be telling anyone of his plans because of his
expectation that our conversation would be confidential. The
government cannot have its agents urge people to not tell people
about their communications and then increase their sentence for
indeed keeping the communications confidential. I am indeed a
minister and as a minister, I keep confidences confidential.
Period. The government should not be able to successfully
increase my sentence because of my minister status and indeed,
this may be prohibited by U.S.S.G. SH1.10. It is Evola who
abused his position as the head of my security. Evola repeatedly
told me not to tell anyone about what we spoke about. How the
government can turn these facts upside down with a straight

face is beyond me.
14


A. Why the "Victim Related Adjustments" may not be imposed.

‘Blakely held that any fact which is neither admitted by the
defendant nor found by a jury beyond a reasonable doubt may not
be used to increase the defendant's sentence. Booker squarely
applied this holding to the Federal Guidelines.

The Victim Related Adjustments posited on page 11 of the Pre-
sentence Investigation Report require that 1)"the victim was a
government officer or employee" and 2) that the offense of
conviction was motivated by such status. While the jury found
#1 in its verdict, it did not find #2 in its verdict as motivation
is not an element of 18 U.S.C. sec. 373. Thus the Victim Related
Adjustments are barred by Blakely and Booker.

B. Why the "Adjustments for Obstruction of Justice" may not

be imposed.

Blakely held that any fact which is neither admitted by the
defendant nor found by a jury beyond a reasonable doubt may not
be used to increase the defendant's sentence. Booker squarely

applied this holding to the Federal Gujdelines.

The Adjustments for Obstruction of Justice posited on page
12 of the Presentence Investigation Report may not be imposed
because there was no jury finding that I indeed obstructed
justice by mailing Fox the letters in question.

C. Why the "Terrorism Adjustment" may not be imposed.

Once again, Blakely held that any fact which is neither
admitted by the defendant nor found by a jury beyond a reasonable
doubt may not be used to increase a defendant's sentence. Booker
squarely applied this holding to the Federal Guidelines.

The Terrorism Adjustment posited on pages 12-13 of the

2



IN THE UNITED STATES DISTRICT COURT - ii = D
FOR THE NORTHERN DISTRICT OF ILLINOIS a a
EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 03 CR 011

MATTHEW HALE, Judge James T. Moody
Defendant. DOCKETED

NOV 1 0 2004
DEFENDANT'S POSITION PAPER AS TO SENTENCING FACTORS

Now comes MATTHEW HALE, PRO SE, presenting his position
Paper as to sentencing factors pursuant to LCrR32.1(g), stating
as follows:

Instead of being fair to both parties, the Probation Officer
in her Presentence Investigation Report goes out of her way to
be a large club for the prosecution. Her Offense Level Com-
putations have no relationship to either the facts or the law
and I thus strenuously object to them. She apparently paid
very little consideration to my version of the offense. In
this position paper, I will set forth in great detail why
none of the enhancements posited by the Probation Officer in
her Report may be lawfully imposed as well as why they are
factually inappropriate to the facts of this case.

I. Why the Imposition of Any of the Enhancements Posited by
the Probation Officer Would Be Unconstitutional and Hence

Unlawful per Blakely v. Washington, - U.S. ~, 2004 WL 1402697

(June 24, 2004) and United States v. Booker, No. 03-4225

(7th Cir. July 9, 2004). J
1 at



where it finds that "there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from

that described. United States v. Almaguer, 146 F.3d 474, 476

(7th Cir. 1998). See also Koon v. U.S., 518 U.S. 81 (1996).

The mitigating circumstance in this case is that my arrest
and conviction is the result of a two year long effort by the
government to induce me into criminal activity. As the trans-
cripts I provided to the Probation Officer show, it was the
government informant who repeatedly browbeated me, implored
me, etc. in an effort to get me to commit a crime. Assuming
for a moment that I committed the offense (18 U.S.C. sec. 373),
my offense only came after repeated government inducements.
This is not a case where I called Tony Evola on the phone and
asked him to kill someone. This is instead a case where Evola
tried repeatedly to persuade me that various people should be
killed. This, surely, is a mitigating circumstance. The
transcripts show decisively that if I committed the crime, it
was only after repeated inducements.

That the mitigating circumstance was

"not adequately taken
into consideration by the Sentencing Commission in formulating
the guidelines" is shown by the fact that no mentkion of extreme
provocation is discussed in the guidelines. Clearly there is a
difference between a person soliciting a government informant

to murder without any history of that informant pressuring the

defendant to do so and a person soliciting a government infor-

10


writing me again. I have lost contact with numerous friends
this way.

When my parents pass on, who will I have to talk and visit
with? My wife and I are estranged and she has refused contact
with me. My two older brothers are emotionally distant. My
brother David is a convicted felon and I fear that I will not
be allowed because of this to communicate with him. This is
all the family that I have. I have lived with the SAM's
restrictions for 19 months but it feels more like 5 years.

I have heard that there is a possibility that I could be
sent to an underground facility in Colorado, a place where
I would never get to see the sun, feel the wind, or breathe
fresh air. These things, this type of treatment, can and
probably would, destroy me. Nor do I forsee the Attorney
General lifting the SAM's anytime soon. Many years under
under such conditions would be unbearable.

When creating the sentencing range, the Commission did not
anticipate a person serving their sentence under such conditions.
For example, serving 78 months without such onerous conditions
is certainly different from serving 78 months with such onerous
conditions. Thus a downward departure is warranted. Otherwise,
I would be punished disparately. If the government wants to
hold me under the SAM's--conditions profoundly more psycholog-
ically severe than the norm--it shouldn't be able to get a nor-
mal sentence.

While the following case deals with deportable alien status,

United States v. Bautista, 258 F.3d 602, addresses collateral

incarceration penalties as are present here. Certainly my
13