But even if the present case, like the entrapment paradigm, should be decided on
the issue of predisposition — raising the “central question” whether Hale showed
reluctance that was overcome by government inducement —not only does the court fail
to see insufficient evidence of predisposition, the court fails to see any evidence that
would allow a jury to find reluctance or a lack of Predisposition on Hale’s part. Hale
argues that the jury had the following to consider: Hale’s history of having committed

no acts of violent crime; the fact that law enforcement agents first suggested the crime;
iB BE

Hale’s reluctance, expressed during his conversations with Evola, to commit the crime;

jury to conclude that Hale solicited Evola, but only because Evola induced Hale to
‘solicit him, presents the logical equivalent of a dog chasing its own tail. It seems
inet that any reasonable jury would ever arrive at such a labyrinthine conclusion.

Po ® As the government points out, Hale’s

Personal commission of violent crime (or
ce thereof) is a somewhat different issue

than whether he might encourage someone

n, While United States v. Hollingsworth, 27 F.3d
96 (7th Cir. 1994), in several instances emphasizes the relevance of a lack of criminal

story to the issue of predisposition, e.g. “[s]o far as it appears, before becoming
. involved [with the government agent, the defendants}. . . had [nJever engaged in
financial wrongdoing or for that matter any other wrongdoing,” Id. at 1201, there is no

else to commit a violent offense. In additio:
1

_ BYIDENCE. In this case, for example, Hale vigorously objected before and during trial to
the jury hearing that Hale had had any contact with Ben Smith in the days immediately

_. Ptior to Smith’s shooting Spree, and had praised Smith afterwards (the shootings were
‘moral and beneficial for the World Church, but Hale expressed regret that Smith had

ue in establishing predisposition,” 503
/ U,S. at 550, 112 S.Ct. at 1541, the evidence in this case allowed the jury to understand
/ Hale’s intent in announcing that a “state of war” existed with Judge Lefkow, and

repeated statements that Evola—like any member of the Church, was free to take “Talny
action ofany kind. . , according to the dictates of his own conscience.”
19


stating that Hale in fact was involved) was not improper because it was a fair comment
on inferences that could be drawn from the evidence.”

This argument is both surprising and somewhat troubling, because it is a 180-
degree shift from the government's first argument ~ that it “never argued” that Hale
had directed Smith to do what he did —and suggests that the government intentionally
reneged on its promise to the court and to defense counsel that it would not do so.
What it appears actually happened is that the prosecutor misspoke, in the heat of the
moment, and is trying to make his best argument now that the statement was not
improper. An objection by defense counsel cut off the prosecutor mid-sentence as
follows: “As to Mr. Evola, before Tony Evola ever had any conversations with the

defendant, we knew a lot about him. Ben Smith killed two people, and he thought that
was —.” Vol. 11 at 140. After the interruption, the prosecutor picked up where he left
off, continuing with the statement that the “government had evidence that the
defendant had a member of his organization kill two people.” Thus, the plain fact that
Ben Smith had killed two people became the statement that the government “had

evidence” that Hale had Smith kill two people.

® For example, during cross-exam of Evola, defense counsel brought out the fact
that Evola had told the FBI that another individual who had been involved with the
‘World Church, John Yonkers, told Evola that he had been asked by Hale “to do what
Ben [Smith] did.” Vol. 7B at 105. Defense counsel was not trying to show that Yonkers
had said such a thing, but instead that Evola was a biased witness: that he made the

(statement up to get into the FBI’s good graces and help them try to “get” Hale. Vol. 7B
at 107-09.

| 40



probative value of this evidence was marginal, and outweighed by the potential for
prejudice, a new trial is not warranted. During re-cross-examination, the defense
emphasized the fact that the murder, which led to the judgment, occurred several years
earlier when the Church of the Creator was headed by Ben Klassen, well before Hale
became the leader of the new church, the World Church of the Creator. Vol. 4 at 123-25.
Any prejudice caused by this evidence was thus minimized and, in light of the evidence
of Hale’s guilt, the court will not order a new trial.
Last, there is the issue of evidence concerning the Ben Smith shooting spree. In
his opening brief Hale argues that this evidence had a “complete lack of probative
|
value” and because the “government argued Defendant's involvement in the Smith
|
shootings as if he had been proven to have had an involvement,” the resulting prejudice
necessitates a new trial.” Defendant's Motion at 31-32. In its response the government
answers:
Defendant cites to no portion of the record that supports this
assertion, Indeed, the government never argued that the
defendant. . . instructed Ben Smith to engage ina
shooting spree.

Government's Response at 20.°

‘0 The court points this out because the government maintains that this court
lacks jurisdiction to consider Hale's filing of September 23, 2004, identifying the
relevaht portion of the transcript, on the basis that it is untimely. However, because the
government specifically argues that Hale‘s motion is unsupported by the record, and
because Hale's filing merely points out the transcript passage supporting the argument
made in his timely motion for a new trial, the court does not believe that it lacks
jurisdiction. In any event, the transcript of what was said at trial cannot be ignored.

36


other evidence. Another factor listed by Congress as an example of a strongly
corroborating circumstance is the belief or knowledge that the person being solicited
had previously committed similar offenses. While there is no evidence Hale had such
knowledge as to Evola, Hale on several occasions did express confidence in Evola’s
loyalty, willingness and ability to carry out actions to further the World Church agenda.
, For example, in a recorded conversation on May 24, 2002, Hale told Evola “I
know damn well that if I were to tell you right now to go out and shoot the bastard
[referting to a perceived enemy of the World Church] you would in a heartbeat.” On
sox occasion, after Evola had suggested an act of violence against Ken Dippold, also
sev to be an enemy of the Church, Hale told him “after dreaming about your idea
\ hoy ts. . .1 must veto it.” E-mail dated 1-12-01 Both of these statements evince
Hale’ 8 belief that Evola was willing and capable of carrying out violent acts, which is
not mnch different than if Hale believed that Evola had committed similar offenses in
the pastor of the specific examples given by Congress —and is a circumstance
strong corroborative of Hale’s intent. Moreover, as the government points out, the
latter statement shows that Hale believed he could direct Evola not to carry out plans of
violence. Thus, his failure to tell Evola not to carry out plans of violence against Judge

Lefkow is another circumstance corroborative of his intent.

|
: The above is a brief summary of only some of the aspects of the evidence

"
!
| Providing circumstances that corroborate Hale’s intent. The evidence as a whole was

a B


ol
|
{
i
overthrow” of the “Jewish occupational government” by any necessary means

including terrorism, While Hale and other adherents to this philosophy have, under our
i"
iz
system of government, a constitutional right to hold and advocate such beliefs, there is
fi

it
ng doubt that some persons attracted to such beliefs will be inclined to act on them, and

»ss the line from protected belief to criminal conduct.

Evola presented himself to Hale as one such individual. While Hale tries to
portray himself as a peaceful individual reluctant to endorse Evola’s repeated proposals
tote action against enemies of the World Church, who was finally worn down by
Ey la’s persistent inducements, a reasonable jury could view the evidence as showing

il
ont that Hale was only biding his time, often indifferent to Evola’s schemes ~ except in
|

ioe cases where he thought it prudent to direct Evola not to take action—and only

“i

rel

ctant to do or say anything that might directly inculpate him.

1
: | For example, in January 2001 Evola badgered (as Hale would characterize it)

HI
i
Hale for information, such as a picture and an address, that could be used to take
‘it.

vial nt action against Ken Dippold. Hale told Evola: “I think in many ways it would be
\ i}

best that nothing happened.” Recorded conversation of 1/11/01. As Hale explains his
i
male for disagreeing with Evola, it becomes clear that his objection is motivated by

|
ol liency rather than a lack of predisposition that Evola carry out the plan:
P Pp Ty Pp

i | [Mlorally speaking by all means I don’t want to have a
i problem with any kind of a traitor, you know, being

|

TH
| | Hale often made statements such as “Our day will come.” See, e.g., e-mail
dated|1/12/01.
Hi
at

23



|

Viewing the remark in isolation, the court believes it was improper, but as the

|
government points out, “[p]rosecutorial remarks can provide a basis for a new trial only
if the remarks were improper and so infected the entire trial with unfairness so as to

render the conviction a denial of due process.” United States v. Sanchez-Galvez, 33 F.3d
|

829, 834 (7th Cir. 1994). If a remark in isolation is improper, then the court must
consider it in light of the entire record to see if there has been a trial so unfair that it
amounts to a denial of due process, in light of five factors:

j 1) the nature and seriousness of the prosecutorial
ii misconduct; 2) whether the conduct of the defense counsel]

| invited the prosecutor's remarks; 3) whether the trial court's
\ ie instructions to the jury were adequate; 4) whether the
| defense was able to counter the improper arguments
hi through rebuttal; and 5) the weight of the evidence against
i} the defendant.

|
Ht ited States v, Miller, 199 F.3d 416, 422 (7th Cir. 1999).

HI
| As to nature and seriousness, as explained above, the prosecutor made one
ul

ee improper remark in the heat of his closing argument, and the court does not
Kt

oi the jury even understood the remark the way it was intended. Thus, the

stp of its impact, if any, was quite limited. To some extent, the remark was

ih d by defense counsel’s argument that the government took steps to “set up” Hale

i
14
!

mf sending Evola to him only five days after the Smith shootings. Although defense
ai had no opportunity for rebuttal, and did not object and seek a corrective
instruction when the remark was made, the court, throughout the trial and in both its

ll
vepine and final instructions to the jury, informed the jury that the lawyers’

41



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

Moreover, witness James Burnett, who at the relevant time was a “Creator,” the
term used to describe a member of the World Church, and part of Hale’s inner circle,
testified that he had heard Hale discuss the trademark lawsuit and remark “[tJ]hat he
would not hand over any books, that he would have them shipped out to another
state.” Vol. 5 at 20. Witness Jon Fox, another World Church insider, testified that just
before Thanksgiving in 2002 Hale told Fox that Hale had received Judge Lefkow’s

order, it required the World Church to deliver its books up for destruction, and that he

would not comply. Vol. 5 at 108-111. There was more evidence bearing on this issue,“

3 All citations in the format of Vol. # at # are to the transcript of trial filed with
the clerk of the court.

‘ For example, throughout a November 29, 2002, e-mail to World Church
members, Hale reiterated that Judge Lefkow had ordered the books to be destroyed,

4


Motion for a New Trial

Hale argues that the interests of justice require a new trial because of three
evidentiary issues as to which there was a “complete lack of probative value and. . .
high level of prejudice.” Defendant's Motion at 32. Those issues are, first, evidence
concerning the Ben Smith shooting spree. Second, admission of, and comment on
passages in the White Man’s Bible. Third, evidence admitted through the testimony of
James Amend concerning “judgment-proofing” and “in the process. . . [saying] that
the Defendant's organization had previously been held civilly liable for a killing.”
Defendant's Motion at 32.

As to the second of these issues, concerning the White Man’s Bible, little need be
said. Defendant Hale, not the government, moved for admission of this document into
evidence as Defendant's Ex. 15. Vol. 5 at 184. Hale cannot obtain a new trial on the basis
of any prejudice caused by an exhibit that he himself put in evidence. The government's
comunents on portions of that document thereafter was fair use of the evidence.

As to Amend’s testimony concerning judgment-proofing, the defense made
efforts, during Amend’s cross-examination, to portray the Seventh Circuit opinion
which reversed Judge Lefkow’s decision — favorable to the World Church—as an

“extraordinary” opinion. Vol. 4 at 86-87. The defense also brought up the issue of the

however, and it is not clear that the Seventh Circuit would agree, as it has stated:
“When obstruction [of justice] takes the form, as in this case, of perjury or other lying,

».. the materiality of the lie becomes a focus of inquiry because a lie that is immaterial
to the justice process is not a potential interference with it.” United States v. Buckley, 192
F.3d 708, 710 (7th Cir. 1999),

34


and the fact that government agents had “campaigned for years” to persuade him to
commit a criminal act, starting long before Judge Lefkow issued the order in the
trademark suit requiring the World Church to destroy or alter its books.
It is not too difficult to explain why Hale's characterization of the evidence fails

to show that no reasonable jury could find predisposition. In United States v.
Hollingsworth, 27 F.3d 1196 (7th Cir. 1994), the Court of Appeals explained that Jacobson
“clarified the meaning of predisposition,” showing that the term has “positional as well
as dispositional force.” Hollingsworth, 27 F.3d at 1200. The positional aspect means that
the defendant

must be so situated by reason of previous training or

experience or occupation or acquaintances that it is likely

that if the government had not induced him to commit the

crime some criminal would have done so; only then does a

sting or other arranged crime take a dangerous person out of

circulation. A public official is in a position to take bribes; a

drug addict to deal drugs; a gun dealer to engage in illegal

gun sales. For these and other traditional targets of stings all

that must be shown to establish predisposition and thus

defeat the defense of entrapment is willingness to violate the

law without extraordinary inducements, ability can be

presumed.
Id. Amplifying further, the court explained that the “defense of entrapment reflects the
view that the proper use of the criminal law in a society such as ours is to prevent
harmful conduct for the protection of the law abiding, rather than to purify thoughts
and perfect character.” Id. at 1203.

The court emphasized that Jacobson defined entrapment as “‘the apprehension of

an otherwise law-abiding citizen who, if left to his own devices, likely would never

20


and, uhm, you know, I'll just leave it at that... . . . You know, um, that’s pretty much
the deal on that.” Id. at 14-16.

After Evola says “but reverend we, we really need to do this though,” Hale

states:

Let me explain one thing that, you know. It’s my
understanding and you'll understand, I hope. You know,
you will probably hate to say this. It’s my understanding
that you're coming to me as your minister, as your priest so
to speak . . .and you're confessing . . . and, you know,
that's confidential. . . . {YJou can speak freely because if it
ever came back that uh, that somehow, you know, it was

i known that you were here or whatever, well you talked to

me about church things. . . but] don’t have to reveal any

of the content of your conversation because you're coming

Li tomeas your. , .I/myour minister. . . . Butin any

| case, uhm, you know, we’re just speaking about a, a Charles

| Dickens’ novel anyway, aren’t we?

“Td. at 16-17.

7 A bit later Evola refers to “the matter that we were talking about [before.”]” Id.

at 18. Hale responds: “Well, I can’t approve. I just want to say that I can't approve, you

‘know. . . . know you [want]* that but if I were to say that, then technically I'd be

violating what I just, today, argued strenuously that I wouldn’t do, you know[.]” Id. at
alt

18. After Evola reiterates that he “doesn’t want a rat to go free” and that “it has to be
i]

' done,” Hale responds: “Well, I just have to make it clear. I can’t and after today, I don’t

** Although the transcript agreed to by the parties says “for that tape,” the court
|| believes that Evola actually said, or at least meant, “before that tape,” referring to the

| fact that the two of them had just been making a copy of a cassette tape.

* The transcript says “what” but the court believes “want” is correct.

26


only a matter of time until Hale offended and Evola hastened the timetable?” To state
the conclusion before painting the supporting picture, a reasonable jury could easily see
Hale as an active recruiter of individuals such as Evola (that is, the character Evola
pretended to be), who then cultivated his relationship with such individuals in order to
be able to later use them, as the government aptly characterized during its closing
argument, as “stick[s] of dynamite” to be lighted if and when Hale chose.

Unlike Jacobson, who (in the Court's view) was sitting in his Nebraska
farmhouse minding his own business until the government came along, Hale placed
himself in a unique position creating the opportunity to meet potential lawbreakers: he
was the prominent, media-savvy, leader of the World Church of the Creator, a white
supremacist organization subscribing to the doctrine contained in the White Man's Bible.
Despite Hale’s attempts to characterize the World Church as a peaceful organization,

any reasonable person can interpret the organization’s philosophy as advocating the

70“ 4 person who is likely to commit a particular type of crime without being
induced to do so by government agents, although he would not have committed it
when he did but for that inducement, is a menace to society and a proper target of law
enforcement. The likelihood that he has committed this type of crime in the past or will
do so in the future is great, and by arranging for him to commit it now, in circumstances
that enable the government to apprehend and convict him, the government punishes or
prevents real criminal activity. The government's inducement affects the timing of the
offense; it does not create the offense by exploiting the susceptibility of a weak-minded
person. The defense of entrapment reflects the view that the proper use of the criminal
law in a society such as ours is to prevent harmful conduct for the protection of the law
abiding, rather than to purify thoughts and perfect character.” Hollingsworth, 27 F.3d at
1203.

22


trademark defense of “prior use,” and asked about a motion that had been filed to
disqualify Amend’s firm because one of his partners knew, at the time the suit was
filed, that the World Church had made a prior use of the term “Church of the Creator,”
the specific term involved in the litigation. Vol. 4 at 82-85.

In response to that line of questioning, the government, during re-direct, asked
whether the Seventh Circuit's opinion had used the term “judgment-proofing,” having
Amend explain that the Seventh Circuit reasoned that the organization known as the
“Church of the Creator” had dissolved its corporate existence, as part of a judgment-
proofing effort, and therefore Hale’s organization, the World Church of the Creator,
was not a successor to that organization which could claim a prior use of the term.

Vol. 4 at 112-117. The defense did not object to the initial question regarding the term
“jadgment-proofing,” and this line of questioning was a fair response to the defense
argument. By itself, the evidence of “judgment-proofing” was not inherently prejudicial
requiring a new trial.

Next, however, the government asked Amend if he knew what the earlier
judgment against the Church of the Creator involved, and he answered that it resulted
from the Church of the Creator “sponsoring” the murder of an individual in Florida.
Vol. 4 at 113, 117. The defense objected and moved for a mistrial as the result of the
government eliciting this detail. The government argued this detail was fair as part of
its effort to show that the Seventh Circuit opinion was not “extraordinary,” and the

court denied the defense motion. Vol. 4 at 114. While the court now agrees that the

35


evidence sufficient to allow a reasonable jury to find that: 1) the government induced
the defendant to commit the crime, and 2) the defendant was not predisposed to
commit the offense. United States v. Blassingame, 197 F.3d 271, 279 (7th Cir. 1999).
Although the court thinks now that it is a very close question whether an
entrapment instruction was even warranted, the court gave the jury Court’s Instruction
No. 20, stating that in deciding whether the government had met its burden, the jury
could consider: 1) Hale’s background; 2) whether law enforcement agents had first
suggested the criminal activity; 3) whether Hale showed reluctance to perform criminal
activity; 4) whether law enforcement agents repeatedly induced or persuaded Hale to
perform criminal activity, and; 5) whether law enforcement agents offered exceptional
persuasion or merely solicited the commission of a crime. The court instructed the jury
that no single factor is dispositive: “the central question is whether the defendant
showed reluctance to engage in criminal activity that was overcome by inducement or
persuasion.”
Hale’s motion for a judgment of acquittal must be denied unless no rational jury
could decide beyond a reasonable doubt that he was not entrapped. United States v.
Theodosopoulos, 48 F.3d 1438, 1444 (7th Cir. 1995). This requires the court to focus on the
two issues a jury must determine when a defendant presents an entrapment defense:
“(1) whether the government induced the defendant to commit the crime, and, if so,
(2) whether the defendant was predisposed to commit the offense.” United States v.

Higham, 98 F.3d 285, 290 (7th Cir.1996). Hale moves directly to predisposition, arguing

17


circumstances, as discussed in United States v. Gabriel, 810 F.2d 627, 635 (7th Cir. 1987).°
The instruction concluded with the statement that the “surrounding circumstances in
general must indicate that the solicitor is serious that the person solicited actually carry
out the crime.” The surrounding circumstances in this case easily make this showing.
First, Hale sent an e-mail to all World Church members informing them of the
order entered by Judge Lefkow, stating that the order placed the Church in a state of
war with her, and quoting a passage from the White Man’s Bible (one of the Church’s
“holy books”); that this allowed members to take “the law into our own hands” and
“meet force with force and open warfare exists.” E-mail dated 11/29/02." A few days

later Hale sent an e-mail to Evola only, providing Judge Lefkow’s name and office

1

| ° The circumstances include, but are not limited to: (1) offering or promising

payment or some other benefit to the person solicited if he would commit the offense;
(2) threatening harm or some other detriment to the person solicited if he would not
commit the offense; (3) repeatedly soliciting the commission of the offense; (4) holding
forth at length in soliciting the commission of the offense, or making express
protestations of seriousness in soliciting the commission of the offense; (5) believing or
being aware that the person solicited had previously committed similar offenses; and
(6) acquiring weapons, tools or information suited for use by the person solicited in

“nn of the offense, or making other apparent preparations for the commission
ofthe offense by the person solicited. S.Rep. No. 307, 97th Cong., 1st Sess. 183 (1982).
Similar to its feelings regarding the giving of Court's Instruction # 19A, the court
reluctantly lists the circumstances here, because the parties’ emphasis on them tends to
make them exclusive rather than illustrative. The circumstances listed are neither
exclusive nor conclusive and serve only as guidance on the issue of intent; whether
there are strongly corroborating circumstances is an issue of fact for the jury to decide.
Gabriel, 810 F.2d at 635, & n. 5.

"19 For the various e-mail copies, tape recordings and video tapes admitted during
the ¢ase-in-chief, the government used a numbering scheme based on the date of the
item, Therefore, for simplicity the court identifies the exhibits by date throughout this

ord


conversation with the reporter.” Scruggs also testified, during cross-examination, that
nine months prior to the trial she had spoken with the prosecutor on the telephone and
told him that she had observed Hale become “misty-eyed.” Id. at 10. The jury also heard
a stipulation that an FBI agent would testify that Evola told him that in May, 2000
(nearly a year after the time of the CNN interview), Evola gave Hale a T-shirt bearing
an image of Ben Smith, and Hale began shedding tears while hugging the T-shirt. Vol.
10 at 69. Finally, the jury heard evidence that Hale, when prompting his father to recall
that Hale cut off the interview and came into the house crying, and to tell the grand jury
about the incident, knew that his conversation with his father was being listened to, and
tape recorded. Vol. 9B at 177-78.

Summarizing, the jury heard uncontradicted evidence that Scruggs could not, at
the time of trial, remember Hale crying or becoming “misty-eyed,” but nine months
earlier she had told the government that Hale became misty-eyed.” At trial she never

stated that her memory nine months earlier must have been mistaken. On the other

” The word “interview” has much broader usage by lay people than being
limited to on-camera questioning, e.g., going on a “job interview.” As Hale points out,
even the prosecutor referred to a telephone conversation he had had with Scruggs,
discussed in the accompanying text, as an “interview.” Vol. 10 at 21.

% The government argues that Scruggs “testified definitively” that she never saw
Hale cry or become misty-eyed, This is a mischaracterization. Scruggs testified that, to -
the best of her recollection at that moment, she never saw Hale cry or become “misty-
eyed.” Although she testified that seeing the videotapes at trial refreshed her
recollection about the day in question, she never testified that she must have made a
mistake when she spoke to the government nine months earlier. Moreover, Hale
becoming “misty-eyed” would be a peculiar detail of which for her to have a false
recollection during her initial conversation with the government.

32


carry out violence if Hale so wished, and that Hale seized that opportunity out of his
own predisposition, not because he was manipulated by Evola.

And while it is true that Evola did attempt to persuade Hale that violent action
should be taken, that persuasion was not “exceptional” persuasion: Evola’s entreaties to
Hale were not directed toward overcoming resistance to the idea of committing a crime,
but rather revealed disagreement between Evola and Hale as to whether a particular
crime would advance, or retard, Hale’s (and the World Church’s) objectives. Other than
reluctance for Evola to take action which would be detrimental to his objectives, the
only reluctance that Hale showed was that he not be associated with Evola‘s actions. It
is also true that a reasonable jury could view the evidence as showing that at all times
Hale saw himself in control of Evola, able to simply mention a name to Evola and have
Evola take action, and that he could at any time direct Evola not to take any action.

When Hale initiated contact with Evola concerning Judge Lefkow, he knew, as
the government characterized it, that he was lighting the fuse on a stick of dynamite
that he had kept at the ready. When Evola then told Hale of his plans to “exterminate”
Judge Lefkow, Hale, unlike his directive to Evola concerning Ken Dippold, told Evola
that Evola should act in accordance with his own conscience. A reasonable jury could
find beyond a reasonable doubt that Hale had the predisposition to use Evola in this

manner, not that Evola turned a “harmless,. . . weak [and] foolish”” man into a

% Hollingsworth, 27 F.3d at 1202.
29


be faulted for thinking that he could retain the materials in his possession, while
assuring Judge Lefkow that he was in compliance, as long as he intended to take the
proper steps in the future. Hale amplifies this argument in Defendant's Reply by noting
that he told Judge Lefkow that from his “understanding” of the order he was in
compliance, and “as a matter of common sense,” that qualification means that he really
didn’t know whether or not he was in compliance, so “[cJontained within the sentence
itself is reasonable doubt and no rational jury could find beyond a reasonable doubt to
the contrary.” Defendant's Reply at 23.

Obviously, this argument is slight variation of the first, the difference being its
focus on Hale’s state of mind rather than the objective truth or falsity of the statement:
because Hale could have believed the statement was true, no reasonable jury could find
beyond a reasonable doubt that Hale knowingly told a falsehood. However, all of the
evidence the jury heard painted a picture of Hale— whom the jury knew to be a law
school graduate —as a person who chose his words carefully and cleverly. In addition,
the jury heard Jon Fox testify that on January 7, 2003, the day before the materials were
seized, Fox was helping Hale pack up documents that Hale wanted to safeguard from
seizure. When Fox asked whether to pack up the materials in question, Hale told him

not to because they “might as well leave a few things to be confiscated.” Vol. 5 at 143.

’ This raises an obvious question: why would Hale tell Judge Lefkow that no
infringing materials were in his possession, then intentionally leave some to be found?
A reasonable jury could make two inferences. First, that Hale didn’t want it to be
obvious that many documents had been hidden from seizure. Second, that Hale, whom
all the evidence in the case showed was a person who took advantage of every

6


but as will be true throughout this order, the court, rather than exhaustively addressing
it, stops here because this evidence alone is sufficient to allow a reasonable jury to find’
that the statement in the letter was false.®

Next, Hale argues that, even if false, the government did not prove that Hale
acted knowingly, as is required for him to be guilty, that is, that there is no proof that
Hale knew the statement was false when he made it. According to Hale, the opposite is
shown by the fact that the government's own witness, James Amend (the attorney
representing the plaintiff in the trademark suit), testified that Hale could have complied

with the order by obliterating or masking out the offending marks, and so Hale cannot

e.g., “How the ashes of our Holy Books are supposed to be magically restored to their
original state in the event of a victory before the Supreme Court, no one bothers to
explain.” Whether or not Hale understood that the books did not have to be destroyed,
it appears that he took the public position that the books had to be destroyed, perhaps
as a means of inflaming the passions of Church members against the government in
general and Judge Lefkow in particular. See n. 7 below at p. 6.

wa“.

5 References in this order to the jury “finding,” “concluding,” “determining” and
so on should be understood to mean by the appropriate standard, that is, beyond a
reasonable doubt.

° In Defendant's Reply, Hale makes a new argument: that the government
offered no evidence that he possessed the materials on the date he wrote the letter, so
no rational jury could find beyond a reasonable doubt that the statement was false
when made. Arguments raised for the first time in a reply brief are, as a general rule,
not considered, and that seems especially appropriate where to do so would provide a
back door to the time limits imposed by FED. R. CRIM. P. 29(c)(1) & 45(b)(2). Cf. United
States v. Holt, 170 F.3d 698, 703 (7th Cir. 1999). In any event, a reasonable jury could
infer that ordinary World Church materials in Hale’s possession on January 8, 2004, had
been in his control or possession only three weeks earlier. Moreover, at trial, the defense
made a proffer of Hale's testimony on this issue, which was that some, but not all, of the
materials, came into his possession after he wrote the letter to Judge Lefkow but before
the search was conducted. Vol. 10 at 38.


‘i

“ his case has “parallels . . . [that] are stunning” with Jacobson v. United States, 503 US.
|

“ 112 S.Ct. 1535, 118 L.Ed. 2d 174 (1992). Relying on his earlier argument that Evola
slcted him, Hale argues that there is “not [sic] question that the government

attempted to induce . . . [him] into committing a crime. Defendant's Motion at 22.

1
Hit
i

Although in the usual case involving an entrapment issue the “principal

que tion” is the presence or absence of the defendant's predisposition to commit the
cine, see, e.g., United States v. Fiedeke, 384 F.3d 407, 410 (7th Cir. 2004), Hale’s focus here
on biredisposition, and corresponding reliance on Jacobson, is somewhat misplaced.
Jacobson is markedly different from Hale’s case because in Jacobson the government

confeded that it had induced the commission of the crime. Jacobson, 503 U.S. at 549 n, 2,
tll
nase 1540-41 n.2. In the present case inducement is hotly contested, and, unlike the
| ai
usual case where the government induces the commission of a crime by, for example,

i |

offering to purchase contraband, the central question here revolves around whether

: bol solicited Hale or Hale solicited Evola. Because, as was already explained above,
Hy 1)

| thers was sufficient evidence for the jury to conclude that Hale solicited Evola, Hale's

im

joa

| ass tion that there is “no question” that the government induced him is incorrect, and

\
|

|so hilargument that no reasonable jury could find that he was not entrapped doesn’t

leavgthe starting gate."

1

i ” Put another way, were the court to find that there was insufficient evidence
that Hale solicited Evola, then Hale simply would be not guilty of the solicitation
chargé, and it would be unnecessary to consider the entrapment defense. This makes
Be on case, unlike the ordinary case where an entrapment defense is presented,

hie ing of an all-or-nothing proposition. To reason that the evidence would allow a

| a 16

4


little evidence that could tend to show any reasonable person that Defendant acted with
the purpose of obstructing justice.” Defendant's Motion at 9. As noted above, the jury
heard evidence that Hale had stated to World Church members that he had no intention
of complying with the order and would ship books out of state rather than turning
them over. A reasonable jury could conclude that Hale made the statement in the letter
to Judge Lefkow with the necessary corrupt intent.
Count Two

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

First, Hale argues that the government offered insufficient evidence— in fact, no
evidence — of circumstances strongly corroborative of his intent. On this element the
parties requested, and the court gave, the jury an instruction (Court's Instruction No.

19A) patterned after Congress's specific examples of strongly corroborative


punished, morally. But there's just a lot of problems, you
know. . . . Number one, uhm, without going into too
much detail because you just never know. But uh, we, you
know, have a situation with someone who is part of the case
against us, winds up with a problem, we’re automatically
going to be looked at and blamed.

Recorded conversation of 1/11/2001 at 4.” Hale then explains that a second problem is
that it could interfere with obtaining his law license in Iowa, were any suspicion to arise
that he was involved. Id. at 5-6. Evola then states that he could give Hale the date, so
that Hale could create an alibi ([w]e could go and do something or you could go with
your father out to eat”). Hale responds:

I know what you're saying and J have to always remain, you
know, I, I just have to always remain above board and, and
not doing this. I know, I know it’s, and I don’t like it. I don’t
like it at all. I don’t like the idea that indeed this person is
saying these things. But and, I’m not saying that's it’s for
really, you, like it's certainly not for moral reasons but for
practical reasons[.]

It’s just that, I don't think that anything, you know, I don’t
think that anything, uhm, would be gained except for, you
know, knowledge that indeed somebody that, you know, uh,
betrayed us paid for it. I mean and that might be nice and
everything but.

Td. at 6-9.

” For convenience, the court gives references to the transcript of this
conversation used as a demonstrative exhibit by the parties.

24


Minute Order Form (06/97)

United States District Court, Northern District of Dlinois

yf Assi ir
wor Magierate ude James T. Moody “bam Aastgned Judge
CASE NUMBER 03 CR 11 DATE 11/10/2004
CASE US vs. Matthew Hale
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

| DOCKET ENTRY:
@ oO Filed motion of [ use listing in “Motion” box above.)

(2) Qo Brief in support of motion due
|| @) o Answer brief to motion due___. Reply to answer briefdue__.
(4) Qa Ruling/Hearingon____ssetfor__—sat_—
(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at
' (6) a Pretrial conference[held/continued to] [set for/re-set forlon___—ssetfor__-—ssat_—.
a mM oO Trial[set for/re-set for}on___—_at
ji) ®) o [Bench/Jury trial] [Hearing] held/continued to___at
iF (9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ee DOFRCP4(m) CiLocal Rule 41.1 OOFRCP41(a\(1) CI FRCP41(a)(2).

jdo [Other docket entry} ENTER MEMORANDUM AND ORDER; This is a case involving an
j intelligent, educated defendant who tried to walk a very fine line, soliciting another person to commit a
] crime of violence but doing so in terms designed to make it appear that he was only discussing abstract
philosophical concepts. For the reasons explained above, there was sufficient evidence for a reasonable
jury to conclude, beyond a reasonable doubt, that those efforts at subterfuge failed and that the line was
crossed. Hale’s motion (Doc 207-1 & 207-2) for a judgment of acquittal is denied, except as to Count
Five of the indictment, as to which count the motion is granted. Hale’s motion (Doc 207-3) fora new trial
is denied in all respects.

(CL) ME Ror further detail see order attached to the original minute order.]
)

||) ] No notices required, advised in open cour.
J. s
}\: |. | No notices required,
Ira Notices mailed by judge's staff. ti;
H1: | | ‘Notified counsel by telephone. ie dodkcted
— j A
| t Doct to mail notices. 1° a
| am keting LYN03 JOMLSid “Sn
{| |) Mail AO 450 form. vl
/ if to jydge/magistrate judge. + P a
eee BY SHIRY 91 AONNGDE nee
f '
il 0 7 ‘id date mailed notice
SCT deputy's bute He
: initials or
: Date/time received in ;
: central Clerk's Office Imniing deputy nin



Continuing with the conversation of 12/05/02, Evola stated that he had a way of
“getting it” ~ which a jury could reasonably understand to mean the home address of
the “Jew judge” — and asked, “when we get it, we gonna exterminate the rat?” Hale’s
response was “well, whatever you wanna do . . . I’m gonna fight within the law and
but, ah, that information's been pro-, provided. If you wish to, ah, do anything yourself,
you can, you know?” Evola answers “OK” and Hale states “So that makes it clear.”
Evola then says, “Consider it done” and Hale replies “Good.” In conjunction with the
earlier e-mails and other parts of the conversation, Hale’s statement to Evola that if he
“wish[ed] to do anything” himself, he could, was at least the fourth reminder to Evola
that he could take action against Lefkow.

Even children understand the tactic of encouraging others to take action through
passive exhortation: “Mom said we shouldn't get in the cookie jar. I'm not going to get
in the cookie jar, but if you want to get in the cookie jar, that’s up to you.” A reasonable
jury could find that Hale’s repeated“ reminders that Evola could take action if he

wished were repeated solicitations for Evola to commit the offense, and repeated

killed.” Defendant's Motion at 16. As the government points out, and as is noted below,
Hale’s failure to tell Evola “in no uncertain terms” that he is not interested in having
Judge Lefkow killed is itself a circumstance corroborative of Hale's intent.

The court has not reiterated all of them in this order. To provide only one more
example, on December 17, 2002, Evola and Hale met in person and Evola told Hale that
the plan to exterminate the rat was in motion. At least twice during that conversation
Hale told Evola that, while Hale wasn’t telling him to do anything, “whatever a person
does is according to the dictates of their own conscience” and that “whatever a person
wants to do, that’s their own decision.”

11


address (and of the attorneys representing the plaintiff in the trademark suit), and
asking Evola to obtain each person's home address. The e-mail then stated: “Any action
of any kind against those seeking to destroy our religious liberties is entirely up to each
and every Creator according to the dictates of his own conscience." E-mail dated
12/04/02.

The following day Evola went to Hale’s residence and told him that Evola had
received the “e-mail about the Jew judge. . . you wanting his address and the other
rats.” Hale responded: “That information, yes, for educational purposes and for whatever
reason you wish it to be.”* Recorded conversation of 12/05/02. Besides being a not-too-
subtle hint that Evola—the head of the “White Berets,” the security force for the World

Church~ should think about doing more than sending the Judge a greeting card, one of

1 the corroborating circumstances listed by Congress is acquiring information suited for

use by the person being solicited, and providing Judge Lefkow’s name and office

address to Evola generally falls within that category.”

TM Part of Hale's defense has been to maintain that Hale's quotation of the White

| Man's Bible and other Church doctrine is simply rhetoric not meant to be exhortation to
action. A reasonable jury is certainly entitled to conclude, however, that these passages
were not chosen at random and do shed light on Hale’s intent.

” The italics are the court’s emphasis and not meant to suggest that Hale

i i emphasized this phrase when speaking.

* On this point, Hale argues that the surveillance tapes show that he had asked
for, and provided, many other persons’ addresses but never sought to have them

“murdered: “In fact, when Evola sought Defendant's imprimatur to murder Ken

Dippold, Pat Langeballe and Dan Hasset, Defendant, despite knowing the addresses of

these people, tells Evola in no uncertain terms that he is not interested in having anyone

10


knowing that to be untrue. Hale argues that the evidence was not sufficient to show
that it was not true that he had started crying during the interview, and, if that fact is
true, he did not act knowingly, or with corrupt intent, in telling his father to testify to
that fact before the grand jury. Thus, no reasonable jury could find him guilty on Count
Five.

The government attempted to prove the charge through the testimony of Tracy
Scruggs, who was the field producer for the CNN crew that conducted and filmed the
interview, and the videotapes of the interview. On the videotapes there is no indication
that Hale became emotional or stopped the interview. Asked whether, to the best of her
recollection, she ever saw Hale “break down in tears” or “ask for the interview to stop,”
Ecruggs answered “no” to both questions. Vol. 10 at 8, 9. She thought she would
temember Hale crying, if he had done so, because it’s a “big deal” if you get an

interviewee to cry on camera. Id. at 13.

However, as Hale argues, Scruggs also testified that while the film crew was

putting away equipment, and Hale was still speaking with the CNN reporter, Jeff Flock,

Hale asked to be excused for a moment and went into the house. Id. at 6-7. In Scruggs’
|

view, because the crew was not filming at that point, the interview was completed and
|

Hale and Flock were “just chatting.” Id, at 20. As Hale argues, however, it is reasonable
|

to assume — perhaps it is the only reasonable assumption —that from the perspective of

the person speaking to the television reporter, the “interview” covers his or her entire

a | 31



criminal. Thus, the court believes there was sufficient evidence for the jury to find
beyond a reasonable doubt that Hale was not entrapped.
Count Four

Count Four of the indictment charged Hale with endeavoring to obstruct justice
in violation of 18 U.S.C. § 1503 by means of the solicitation of the murder of Judge
Lefkow. Hale’s entire argument on this count is that it depends on his guilt on Count
Two; that is, because he has demonstrated that he is entitled to a judgment of acquittal
on Count Two, charging him with soliciting Tony Evola to murder Judge Lefkow, then
he must also be granted a judgment of acquittal on Count Four. As the court has
explained above, the evidence was sufficient to support the jury‘s verdict on Count
Two, and Hale is not entitled to a judgment of acquittal on that count. As a result, Hale
has given the court no reason to grant his motion for a judgment of acquittal on Count
Four,
Count Five

Count Five of the indictment charged Hale with endeavoring to obstruct justice
in violation of 18 U.S.C. § 1503 by means of instructing his father to testify falsely before
the grand jury concerning a material matter. Specifically, the indictment charged that
Hale’s reaction to Ben Smith’s death was material to the grand jury investigation into
whether Hale encouraged or ordered the Smith shooting spree, and that Hale told his
father to testify that Hale had to cut off an interview with CNN because he had started

crying during the interview because of his emotional reaction to Smith's death,

30


Thus, a reasonable jury could have found that Hale, by qualifying his statement
to Judge Lefkow on his “understanding” of her order, made a calculated attempt to be
able to disclaim responsibility later, just as he now does. In fact, considering the letter as
a whole, in the context of Hale’s statements about the trademark litigation and the
suggestion that he could have easily obliterated the infringing marks, the court believes
that a reasonable jury could infer that Hale had no reason to even bother to mention to
Judge Lefkow that he had no non-complying materials in his possession other than for
the purpose of misleading her.® In short, viewing the evidence in the light most
favorable to the government, a reasonable jury could find that Hale’s statement to
Judge Lefkow was made with knowledge of its falsity.

Hale’s final argument on Count One is that the evidence was insufficient to show
that he had the necessary corrupt intent; that is, even if the statement in the letter to

Judge Lefkow was a “knowing misrepresentation, the government still offered precious

| opportunity to arouse the passions of World Church members, saw this as a perfect

| opportunity to do so in that he would be able to claim that the “Jewish Occupational
Government” —a favorite World Church term—had seized the holy books of the World
Church in order to destroy them.

® In Defendant's Reply, Hale makes another new argument (see n. 6 above at p. 5

as to the propriety of new arguments). Hale’s argument is that because Judge Lefkow
never read the letter and did not have it filed with the clerk, the letter had no more
"reasonable tendency to influence, obstruct or impede the due administration of justice”
than if he had mailed it to himself. Defendant’s Reply at 26. Hale did not mail the letter
ta himself, however, he mailed it to Judge Lefkow, and the fact that she never read it (or
by the time of trial could not recall if she had) is a happenstance. A reasonable jury
could conclude that a letter mailed to a federal judge containing a falsehood would
have a reasonable tendency to obstruct justice.

7


have run afoul of the law.’” Id. at 1199 (quoting Jacobson, 503 U.S. at 553, 112 S.Ct. at

1543). As the court saw it, that described defendant Jacobson, a Nebraska farmer with

limited access to child pornography, who received no solicitations for child

pornography other than from the government. Hollingsworth, 27 F.3d at 1199. The court

also saw that as aptly describing the principal defendant in Hollingsworth, named

Pickard, an Arkansas orthodontist with a history of failed business ventures, who was

lawfully trying to sell a Grenadan banking license and whom the government induced

to commit money-laundering:

Id, at 1202.

Had it not been for that contrived ray of hope [the
government's inducement ~] Pickard would have been
forced to abandon international financing in order to avoid
financial ruin. He was a threat to himself and his family. He
was never a threat to society. All this is even clearer with
respect to Hollingsworth, who functioned in CIAL [the
corporation involved] purely as a minor investor and factotum.

It would be different if CIAL had had an up-and-
running bank, for then it would have had a realistic
opportunity to engage in money laundering, in much the
same way that a public official to whom a government
undercover agent or informant might offer a bribe would
have a real opportunity to sell his office, as in United States v.
Jenrette, 744 F.2d 817, 822 (D.C. Cir. 1984). Pickard and
Hollingsworth didn't have a bank or a public office or any
other facility that made it even remotely likely that they
would have engaged in criminal activity if the government
had not set their minds to it.

From the evidence in the present case, could a reasonable jury conclude only that

defendant Hale was a harmless individual who never would have committed a crime

had Evola not come along, or was there evidence allowing the jury to find that it was

21


jury could have been a strategic move, so as not to emphasize the prosecutor's remark,
the court doubts that is the case, Defense counsel could have raised the issue out of the
jury’s presence, but did not. Instead, it appears that defense counsel, like the court, did
not even notice the remark.

There is a reason the court believes that the remark was overlooked, and if ever
there were an example of why a transcript is no substitute for actually observing the
trial, this is it. The word “had” takes many variations in meaning, depending on the
context. In one context, it means that a person experienced something existing or
happening, while in another, it can mean that a person caused something to exist or
happen, both of which usages are illustrated in the following sentence: “On the way
home from work, Bob had a flat tire, so he called a garage and had them come fix it.”

Throughout the transcript are numerous examples of the prosecutor using, in
some cases perhaps misusing, “had” simply to mean that something existed or
happened. For example, only three sentences after the remark at issue the prosecutor
stated: “The government knew that this man, the defendant, had an organization that
had all the things that are in this White Man’s Bible.” Vol. 11 at 140 (emphasis added),
Although any listener can understand this sentence, consider the second “had.” While
the prosecutor seems to have meant that the organization subscribed to the “things” in
the White Man’s Bible, the organization didn’t cause them to be there, the author did.

Thus, the court is convinced that it, defense counsel and the jury all heard the

sentence, “{t]he government had evidence that the defendant had a member of his

38


| organization kill two people and shoot lots of others,” simply as a reference to the fact
that the shootings occurred, not that Hale orchestrated the shootings. This
understanding of the remark is supported by reading the sentence in context:

| The government had evidence that the defendant had a
| member of his organization kill two people and shoot lots of
others. And the defendant got on national television and

| said it wasn’t a bad thing. The problem with it wasn’t that

| there were two people dead, but that his law license might
| be denied.
|

| Vol. 112 at 140. The overall thrust of the prosecutor’s remarks is not that Hale caused

| the shootings to happen, but instead that Hale’s reaction and remarks afterward
|

|| showed his approval of what had happened, one of the very reasons that references to

the Smith shooting spree were allowed.
| Despite the court's view of how the prosecutor's closing argument was

understood, it appears now that this is not what the prosecutor intended. In the
|

“Government's Response to Defendant's Transcript Excerpts Relating to Pending

|
| Motion for a New Trial,” filed on October 22, 2004 (docket # 243), the government

argues that this comment was a fair response to defense counsel’s closing argument on
entrapment ~ that only five days after the Smith shootings the government was trying
i introduce Evola to Hale as a means of “setting him up,” Vol. 11 at 102-03, 116—and

the fact that the government “had evidence” that Hale was involved (as opposed to

| 39


want to ever hear about it again, you know.. . . I mean, as far as I’m concerned, you
were talking about something theoretical[.]” Id. at 19. A bit later Hale says: “I guess I
can't, you know, you understand why I can’t give approval. You understand that’s
because that could be construed as a conspiracy and I, J cannot be a party toa
conspiracy.” Id. at 24. Hale then says “even if it happens” he would be able to say “I
don’t know anything about it.” Id. at 25. Continuing, “I mean the guy, the guy was a

5 nutball and who the hell knows who else doesn’t like him, you know.. . . [S]o, that’s

what I have to, you know, after tonight, know nothing[.] Id. The conversation concludes

with Evola stating that it will be good when it’s done, that he will take care of it, and
that it is strictly between the two of them. Hale replies: “Yeah, well, yeah.” Id. at 26.

Despite Hale’s statements throughout the above conversation that he and Evola
were only speaking theoretically and that he wasn’t authorizing anything, the next day
he sent Evola an e-mail which stated:

After thinking and dreaming about your idea for hours
before awakening abruptly at three this morning. I must
veto it.

I know this is difficult. You are very persuasive and
obviously I think very well of you for your idea. You have
demonstrated repeatedly your allegiance to me and our
great Cause and my love for you as my loyal Brother
increases by the day. However, too many allegations could
be made. Too many insinuations. Too many individuals
would see it as grounds to cast doubt upon our word and
my word in the legal realm. With the stakes so high, and
with no tangible benefit in the various legal struggles we are
engaged in by implementing your idea, I must instruct you
not to proceed.

27


Count One

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

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

Hale argues that because compliance with Judge Lefkow’s order could have been
achieved by simply obliterating, or masking out, the term “Church of the Creator” on

the various documents, and because the government did not offer any evidence


more than sufficient for a reasonable jury to conclude that circumstances strongly

| corroborative of Hale’s intent existed.

Next, Hale argues that there is insufficient evidence from which the jury could

| conclude that the “rat” Evola talked about exterminating was understood by Hale to be

i Judge Lefkow. As noted above, on his visit to Hale the day after Hale’s e-mail request

for Judge Lefkow’s address, Evola stated that he had received the “e-mail about the Jew
judge. . . you wanting his address and the other rats” and seconds later asked “when

we get it [the address], we gonna exterminate the rat?” Although Hale did not correct

: Evola’s reference to “his”"* address, Evola sent Hale an e-mail a week later stating that

- he had called the “exterminator” about the “rat problem” he and Hale had talked about:

“You have to know where rats hide and he think[s] he located her. He is working to get

\ rid of the femala [sic] rat right now.” E-mail dated 12/09/02. On December 17, 2002,

Evola again met with Hale in person. During that recorded conversation, Evola used

«» TM The court has understood Hale to be arguing that because Evola said “his,” a
reagonable jury could not find that Hale understood Evola to be referring to Judge
Lefkow. Because Hale had sent Evola an e-mail only the day before identifying the
Judge as “Joan” Lefkow, a jury could reasonably conclude that Hale simply assumed

- that Evola had misspoken in the (feigned) heat of the moment and let it go without
: correction. However, in subsequent filings (seeking electronic analysis of the tape) to be

addressed i in a separate order, Hale states that the court has misunderstood: the issue is

3 whether, instead of “other,” Evola said “his address and all his rats.” If so, Hale
: believes, Evola never called Judge Lefkow a “rat” and so Hale could not have believed
the ¢onversation about exterminating a rat to be about Judge Lefkow. Because Evola

told, ‘Hale he had received the e-mail “about the Jew judge. . . wanting his address”
and then asked “when we get it, we gonna exterminate the rat,” a reasonable jury could
find that Judge Lefkow was being discussed even if Evola did say “wanting his address
and all his rats.”

4


information Evola was imparting was putting Hale in an awkward position, Hale,
declaring that he wasn’t telling Evola to do anything, also told him that “whatever a
person does is according to the dictates of their own conscience” and that “whatever a
person wants to do, that’s their own decision.” There is no doubt that, starting with the
first e-mail declaring “war” on Judge Lefkow, and then by repeatedly advising Evola
that any action he wanted to take against her was up to Evola’s own conscience, a
sufficient evidentiary basis exists from which a reasonable jury could find that Hale

: sélicited Evola.”

| Finally, Hale argues that the evidence was not sufficient to prove that Hale was

“not entrapped. Where an entrapment defense is properly raised, the government has
‘ne burden of proving, beyond a reasonable doubt, either that before contact with law
enforcement agents the defendant had a predisposition to commit the offense, or that
the defendant was not induced or persuaded to commit the offense by law enforcement
} ents. An entrapment defense is “properly raised” when a defendant identifies

Hel
i |

1” In Defendant's Reply, Hale argues that during this conversation he specifically

told, Evola that “this is too serious” and that he “didn’t want it,” meaning the murder of
Judge Lefkow. The portion of the conversation Hale references, coming just after he
reminded Evola that it was “not exactly wise to tell me [Hale] anything,” is as follows:
i Th not gonna have anything done. I’mjust. . . saying that whatever a person wants
td do and I, I have to be, I just can’t, this is too serious. I just can’t ah, yeah, incredible.
An way, I don’t want anything, you know. I’m nota party of anything. . . . not
encouraging anything, just . . . if they do something, that’s their own business.” A

| reasonable j jury could interpret the” too serious” remark to mean “too serious for us to
dis uss like this,” or “too serious for me to explicitly approve of,” and the remark “1

\ (dont t want anything” to be an effort to create what the government calls “plausible
'deniability,” allowing Hale to later claim that his words did not direct Evola to do

anything, contrary to the substance of the communication between them.

16


judgment of acquittal on Count Five, the court will deny Defendant's Motion in all
respects.

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

Motion for a Judgment of Acquittal

As to each of the four counts on which he was convicted, Hale argues that the
government did not introduce sufficient evidence from which a reasonable jury could
find him guilty beyond a reasonable doubt. The Court of Appeals has frequently stated
that a defendant making this argument faces an “uphill battle” and bears a “heavy
burden.” United States v. Wallace, 212 F.3d 1000, 1003 (7th Cir. 2000); see also United States
v. Gardner, 238 F.3d 878, 879 (7th Cir. 2001); United States v. Angle, 234 F.3d 326, 339 (7th
Cir. 2000). “The test is whether, when the evidence is viewed in a light most favorable

’ to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Gardner, 238 F.3d at 879 (citing Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).



However, as a supplement to Defendant's Reply, Hale points out that during his
closing argument, the prosecutor stated: “The government had evidence that the
defendant had a member of his organization kill two people and shoot lots of others.”
Vol. 11 at 140.

Upon reading this statement the court was, frankly, shocked. First, the court was
shocked because it did not recall anything like this being said at trial. The remark
should have jumped out, as it is an apparent violation of repeated assurances by the
government, important to the court's evidentiary rulings, that evidence concerning
Smith would be confined to the purposes for which it was allowed," and would not be
used to suggest that Hale directed the Smith shooting spree (consistent with the claim
in the Government's Response that it never argued that Hale instructed Ben Smith to
engage in the spree). Second, the court is surprised that defense counsel did not

immediately object and seek a mistrial on this basis. While not doing so in front of the

In public comments following the Smith shooting spree, and statements made
to the FBI, Hale never condemned Smith, but did state that the World Church was a
peaceful organization and that he would have counseled Smith not to engage in the
shootings if Smith had asked for counseling. In private comments to Evola and others
church members Hale praised Smith's actions as beneficial to the Church. As has been
explained in this memorandum and order, the court allowed this evidence in order to
aid the jury in understanding Hale’s conversations with Evola, and to support the
element of circumstances “strongly corroborating” Hale’s intent; i.e., that when Evola
stated that he was going to “exterminate the rat,” and Hale responded that whatever
Evola wished to do was up to his “own conscience,” Hale was serious, and understood
that he and Evola were not joking. For the same reason, it had bearing on the issue of
entrapment/ predisposition, that is, whether Evola proposed a criminal design to Hale
and thereby caused a crime, or whether Hale already saw violence as a means of
achieving church objectives, and seized upon the opportunity Evola offered.

37


Evola then presses Hale, saying that all he needs is Dippold’s address, and Hale
responds “I already mailed itto you. . . . Just for your information only.” Id. at 9. A
moment later Hale follows with:?

T have to be pure because I, you know, such a thing would
really, you know, such a thing they would try to make hay
out of and I suppose, you know. Once again, we’re just

speaking in theoretical terms just in case, you know, the
walls have ears and all kinds of shit.

And I, but I just want it clear. I've never given my

authorization for this.. . . You know, I, I and I don’t

approve, you know, uhm. . .
Id, at 10, 12. Evola then asks Hale to describe Dippold‘s apartment. Hale starts to and
then says: “But see I, I can’t even really go into stuff like that otherwise it could be said
that, yeah, I’m furthering this. I can’t further this, you know. . . . I don’t want to
_know about these things.” Id. at 13-14.

After Evola reassures Hale that “this” is just between the two of them and
nothing will “come back” to Hale, Hale states: “Right. . . but. . . once again, we're
ail speaking in theoretical terms and everything. If all this, you know, uh, were to

‘transpire and everything, a hell of a lot of questions are going to be asked, and ah . . .

T have to always be able to say that with complete honesty. . . . Uh, but in any case,

uh, you know, I've, I've always encouraged people to follow the law and obey the law

® The ellipsis in the block quotation that follows indicates the court's omission of
some unrelated conversation and interjections, but also of comments by Evola insisting,
that “[h}e has to go” and that all he needs is Dippold’s address. The court does so for
brevity and does not believe that by doing so Hale’s remarks are portrayed ina
misleading light. The court believes this true of all edited quotations herein.

25


\
i

| (docke

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )
Plaintiff, )
)

v. ) No. 03 CR 11
)
MATTHEW HALE, )
Defendant. )

Q
nek Teg

MEMORANDUM AND ORDER "1, 2004

On April 26, 2004, a jury found defendant Matthew Hale guilty of three counts of

if
| obstruction of justice in violation of 18 U.S.C. § 1503, and one count of solicitation to
|
ha it a crime of violence in violation of 18 U.S.C. § 373. On June 24, 2004, within a
q

| sixty-day extension granted by the court, Hale filed a timely motion for a judgment of

acaittal pursuant to FED. R. CRIM. P. 29(c), or alternatively for a new trial pursuant to

FED.R. CRIM. P. 33. The motion is supported by a memorandum,’ the government has
Hy

fled a responsive memorandum (docket # 223, hereinafter, “Government's Response”)

i
‘and| Hale has filed a reply memorandum (docket # 228, hereinafter “Defendant's

|
Reply”). For the reasons that follow, with the exception of Hale’s motion for a

}
i

‘The motion and supporting memorandum are an integrated document (docket

lf 27), and will be referred to herein simply as “Defendant's Motion.” The pages of
Def

ndant’s Motion were not numbered. The court has assigned numbers to the pages
for ease of citation,
i

i * In addition, Hale filed supplemental transcript excerpts supporting his motion.
(docket #238). The court has taken that filing, and the government's response thereto
# 243), into consideration. Hale also filed motions requesting an evidentiary

: hearing (docket # 226) and oral argument (docket # 225). Because the court believes that

an “evidentiary” hearing is unwarranted, and neither hearing would be helpful, both
motions are DENIED.

i


| hand, at trial she did remember that Hale, while speaking to CNN reporter Flock, had

excused himself and gone into the house for a short while, consistent with Hale’s

| statement to his father. Nearly a year after the interview, Evola gave Hale a T-Shirt

| bearing Smith’s image, and Evola reported to the FBI that Hale hugged the shirt and
|
| broke down in tears, lending some credence to the notion that Hale might have cried

i about Smith during the interview, conducted only a few days after Smith’s shooting

spree and death.

|
{

i Assuming that, on the day of trial, Scruggs truly did not recall that Hale had ever
|

co or appeared misty-eyed, the jury was still given no reason to doubt that, on an

ree occasion, she recalled that he had become misty-eyed. Essentially, the jury had
scone evidence that Hale did become misty-eyed, and there is no doubt that
IM

the evidence was uncontradicted that Hale excused himself and went into the house for
|

a few minutes. Thus, even viewing the evidence in the light most favorable to the

government, the court does not believe it sufficient to allow a reasonable jury to

t

l

can beyond a reasonable doubt that Hale was directing his father to testify falsely

fore the grand jury, and therefore, Hale’s motion for a judgment of acquittal on Count
We must be granted.”
| * The court also notes that, while the indictment charged that Hale knew that
is reaction to Benjamin Smith’s death was material to the Grand Jury Investigation,”
(Cor

unt Five, | 4), the government offered absolutely no evidence on the issue of
ateriality at trial, presumably because of its view that materiality is not an element of
a 1503 charge. Vol. 10 at 32. At least two circuits agree with that view. See, e.g., United
States v. Wood, 958 F.2d 963, 973-74 (10th Cir. 1992); United States v. Ruggiero, 934 F.2d
440, 446 (2d Cir. 1991). The court has found no controlling Seventh Circuit decision,
25

|


statements are not evidence. Finally, considering the discussion above as to why the
evidence was sufficient to support Hale's convictions, the court does believes it
extremely unlikely that the remark played any role in the jury’s verdicts.”
CONCLUSION

This is a case involving an intelligent, educated defendant who tried to walk a
very fine line, soliciting another person to commit a crime of violence but doing so in
terms designed to make it appear that he was only discussing abstract philosophical
concepts. For the reasons explained above, there was sufficient evidence for a
reasonable jury to conclude, beyond a reasonable doubt, that those efforts at subterfuge
failed and that the line was crossed. Hale’s motion for a judgment of acquittal is
DENIED, except as to Count Five of the indictment, as to which count the motion is
GRANTED. Hale’s motion for a new trial is DENIED in all respects.

SO ORDERED.

“\ ENTER: November JO, 2004

i In fact, the jury found Hale not guilty on a solicitation count as to which there
plainly was enough evidence to support a conviction, suggesting that he was not
convicted blindly out of prejudice caused by an improper prosecutorial remark.


Yes, I know a chance is taken with this. Maybe we will think
otherwise of my decision in the future. However, you must
let me be the ultimate judge of such an action as I have been
entrusted by our Church to do.
E-mail dated 1/12/2001.
Eleven months later, Hale sent an e-mail asking Evola to “persuade” another
perceived enemy, Patrick Langballe, not to make certain derogatory statements about

Hale. Evola visited Hale seeking direction as to what Hale wanted done. Hale

responded that he had “basically kinda left it up to” Evola. Recorded conversation of

12/06/2001. Evola told Hale that if Hale wanted it, he could take care of it “like we
were gonna do to Dippold.” Id. Hale then states that he had hoped that Evola, simply
by visiting Langballe in person, would be able to persuade him, and, after mentioning
the suspicion that his communications were being monitored, stated that he was
“hesitant. . . for a lot of reasons” to say anything more and that he had “deliberately
kept it vague.” Id.

Other than the conversation immediately above, the court has focused almost
exclusively on the conversation between Evola and Hale occurring on January 11, 2001,
but so has Hale throughout this proceeding: during closing argument to the jury, the
defense asked the jury to look at the conversation concerning Dippold and described it
as one “of the strongest pieces of evidence with respect to innocence.” Vol. 11 at 110.
Moreover, the conversation concerning Dippold is a fair example of the tenor of the
evidence as a‘whole. It is clear that a reasonable jury could view the evidence as
showing that Evola presented himself to Hale as a person ready, willing, and able to

28


solicitation of the offense is another of the examples given by Congress of a strongly
corroborating circumstance.

This is particularly true where, after Evola said “|c]onsider it done,” Hale
replied, “[glood.” Instead of saying “you have misunderstood me,” or “I was only
joking,” this expression of approval for Evola’s plans could reasonably be interpreted as
an express protestation of seriousness by Hale, another of the specific factors listed by
Congress. Adding to the gravity of the remark, only a few moments later Hale told
Evola, “if something happens to me, then, you know, make sure that, that the world

knows about it in a very strong way, you know.” Evola asked “any special way,” and
Hale replied “just use your imagination.” Interpreting these remarks in light of other
evidence introduced showing that Hale had praised” the actions of Ben Smith, a World
Church member who had gone on a shooting spree targeting minorities several years
earlier, the jury could view this as further evidence that Hale truly intended for Evola to

engage in violence.

While the evidence just summarized is enough, by itself, to allow a reasonable

jury to find that the “surrounding circumstances in general. . . indicate that the

solicitor is serious that the person solicited actually carry out the crime,” there was

% Although, as Hale points out, he also made public statements to the effect that
Smith should have acted peacefully, his private criticism tells a different story. For
example, Burnett testified that Hale stated that he wished that Smith had killed more
“race traitors,” a World Church term for, among other things, a white person who
marries a Jew or person belonging to another race. Vol. 4 at 198. It appears that Hale
may have considered Judge Lefkow to be a race traitor, as his e-mail asking Evola to
obtain her home address described her as a “PROBABLE JEW OR MARRIED TO JEW.”

12


ball
ay

wii

: the phrases “she gotta go down” and “[iJt’s not like I’m gonna do it and drop our flag

i on top of her.” Judge Lefkow was the only female in Evola’s list of “rats,” and these are
7 only a few examples of the evidence which was sufficient to allow a reasonable jury to

find that Hale understood Evola to be discussing plans to kill Judge Lefkow.

Hale also argues that the government did not offer sufficient — or any — evidence
that Hale solicited Evola to murder Judge Lefkow; rather, as Hale sees it, Evola solicited
Hale, “repeatedly. . . bringing the subject up after Defendant had clearly expressed
his lack of interest in Evola’s plot.” Defendant's Motion at 19. On this point, the court
refers to the analogy above drawn to children discussing a cookie jar. After making it
clear that a state of war existed between the World Church and Judge Lefkow, allowing
members to take the law into their own hands, Hale repeatedly reminded Evola that
any action Evola wanted to take against Judge Lefkow was entirely up to his own
conscience. When Evola first advised Hale of his plan to “exterminate the rat” and said
that Hale could “consider it done,” rather than expressing concern or reluctance, Hale
replied “good.” Recorded conversation of 12/05/02.

On December 17, 2002, when Evola told Hale that the plan to exterminate the rat

" was in motion, Hale—after stating that they were only talking theoretically, that he was

“not party to such a thing,” and “in fact, don’t know of such a thing” —said that if what
"he “surmise|d), without saying that I know anything” were true, “the shit’s gonna

really hit the fan.” After comparing himself to the fictional character Sergeant Schultz

* (source of the pop-culture phrase “I know nothing”) and telling Evola that the

15