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Anne Chapman (#025965) 

MITCHELL | STEIN | CAREY | CHAPMAN, PC 

One Renaissance Square 

2 North Central Avenue, Suite 1450 

Phoenix, AZ 85004 

Phone: 602-388-1232 

Email: anne@mscclaw.com

Louis S. Fidel (#025479) 

PICCARRETA DAVIS KEENAN FIDEL PC 

2 East Congress Street, Suite 1000 

Tucson, AZ 85701-1782 

Phone: 520 622-6900 

Email: lfidel@pd-law.com 

Christopher B. Dupont (#014158) 

TRAUTMAN DUPONT, PLC 

PO Box 431 

Phoenix, Arizona 85001 

Phone: 602.770.8942 

Email: dupontlaw333@gmail.net

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

v. 

Natalie Renee Hoffman, Oona Meagan 

Holcomb, Madeline Abbe Huse, and 

Zaachila I. Orozco-McCormick, 

 Defendants. 

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No. 17-00339MJ-TUC-BPV 

MOTION TO RECONSIDER MOTION 

TO DISMISS PURSUANT TO RFRA 

 The Court’s pretrial Order acknowledged that Rule 12 of the Federal Rules of 

Criminal Procedure permits determination by pretrial motion of “any defense . . . that 

the court can determine without a trial on the merits.” (Dkt. 136.) The Court went on to 

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recognize that where the facts surrounding the commission of the alleged offense do not 

bear on a determination of the validity of the defense, the Court can and should make 

pretrial factual determinations in the context of Rule 12(b) motions. However, in 

reaching a decision on Defendants’ Motion to Dismiss Pursuant to the Religious 

Freedom Restoration Act, the Court reversed course without explanation and held that a 

motion to dismiss is not the proper way to raise a factual defense such as Defendants’ 

RFRA defense. This holding is an incorrect, overly broad statement of law and has 

serious constitutional implications for Defendants. In fact, Rule 12(d) is mandatory 

absent good cause – “the court must decide every pretrial motion before trial unless it 

finds good cause to defer a ruling.” The Court should therefore reconsider Defendants’ 

Motion to Dismiss Pursuant to RFRA. 

 At issue under RFRA are the following factual determinations: 

Has the government: 

 (1) substantially burdened; 

 (2) a sincere; 

 (3) exercise of religion. 42 U.S.C. § 2000bb-1(a), (c). 

If so, the further factual issues must be resolved: 

 Can the government demonstrate that the burden: 

 (1) is in furtherance of a compelling governmental interest; and 

 (2) is the least restrictive means of furthering that government interest. 

 Framed specifically to this case, the factual issues to be raised at a pretrial 

hearing on RFRA include the following: 

(1) Does criminal enforcement of laws prohibiting the provision of water to 

migrants who face death by exposure in the West Desert substantially burden the 

religious exercise of humanitarian aid workers who believe in the sanctity of human 

life; and 

(2) Is enforcement of criminal laws against humanitarian aid workers for being 

on a Wildlife Refuge without an (invalid) permit, temporarily placing water for use by 

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migrants, and driving on undesignated roads the least restrictive means of serving a 

“compelling” government interest. 

 These factual issues can clearly be “determin[ed] without a trial on the merits” of 

whether defendants abandoned property and drove on undesignated roads. Therefore, 

the RFRA defense should be determined pretrial pursuant to 12 (b). The court’s order 

does not address the several identified cases where RFRA was decided in a pretrial 

context, nor does the court identify what trial issues would need to be determined at a 

hearing on a Motion to Dismiss pursuant to RFRA. 

 Importantly because RFRA requires a determination of a defendant’s sincerity of 

belief, a defendant is required to testify as to his or her belief. The Ninth Circuit has 

held: “The task is to decide whether the beliefs professed . . . are in [the person’s] own 

scheme of things, religious.” United States v. Ward, 989 F.2d 1015, 1018 (9th Cir. 

1992) (emphasis added). The defendant must also establish their beliefs are sincerely 

held. This element is a question of fact, proven by the credibility of the party asserting 

a religion-based defense. United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996). 

Requiring a defendant to testify at trial on RFRA issues, as opposed to pretrial - on an 

issue that can readily be determined without a trial on the merits - may create serious 

Fifth Amendment issues for defendants. Pursuant to the Fifth Amendment a defendant 

may exercise his or her right to remain silent and to not testify at trial. In a pretrial 

hearing on RFRA, a defendant’s testimony will be limited to: 1) the nature of his or her 

beliefs; and 2) whether those belief are sincerely held. However, at trial, the issues are 

much broader and may involve questions relating to underlying criminal allegations to 

which Fifth Amendment rights apply. Forcing a Defendant to choose between 

exercising his or her Fifth Amendment right to remain silent on the one hand and raising 

a valid RFRA defense on the other is a violation of a defendant’s First, Fifth, and Sixth 

Amendment rights. 

. . . 

. . . 

 

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 For these reasons, the Court should reconsider its Order, hold an evidentiary 

hearing on Defendants’ RFRA Motion to Dismiss, and grant the Motion prior to trial on 

the merits. 

 RESPECTFULLY SUBMITTED this 4th day of January, 2019. 

MITCHELL | STEIN | CAREY | CHAPMAN, PC 

By: /s/ Anne M. Chapman 

 Anne M. Chapman 

Attorneys for Defendants 

CERTIFICATE OF SERVICE 

I certify that on January 4, 2019, electronically transmitted a PDF version of this 

document to the Clerk of Court, using the CM/ECF System, for filing and for 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

Assistant U.S. Attorney 

United States Courthouse 

405 W. Congress Street, Ste. 4800 

Tucson, AZ 85701 

Attorneys for Plaintiff 

/s/ Julie Greenwood 

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