United States v. Mullet

• Decision Date: 04 May 2016
• Docket Number: 15–3267,15–3237,15–3247,15–3232,15–3246,15–3277.,15–3273,15–3250,Nos. 15–3212,15–3231,15–3249,15–3269,15–3270,15–3268,15–3275,s. 15–3212
• Citation: 822 F.3d 842
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Samuel MULLET, Sr. (15–3212); Lester Mullet (15–3231); Levi Miller (15–3232); Anna Miller (15–3237); Johnny S. Mullet (15–3246); Emanuel Schrock (15–3247); Raymond Miller (15–3249); Kathryn Miller (15–3250); Eli Miller (15–3267); Daniel S. Mullet (15–3268); Lester M. Miller (15–3269); Linda Schrock (15–3270); Lovina Miller (15–3273); Elizabeth Miller (15–3275); Emma Miller (15–3277), Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

822 F.3d 842

UNITED STATES of America, Plaintiff–Appellee

v.Samuel MULLET, Sr. (15–3212); Lester Mullet (15–3231); Levi Miller (15–3232); Anna Miller (15–3237); Johnny S. Mullet (15–3246); Emanuel Schrock (15–3247); Raymond Miller (15–3249); Kathryn Miller (15–3250); Eli Miller (15–3267); Daniel S. Mullet (15–3268); Lester M. Miller (15–3269); Linda Schrock (15–3270); Lovina Miller (15–3273); Elizabeth Miller (15–3275); Emma Miller (15–3277), Defendants–Appellants.

Nos. 15–3212

15–3231

15–3232

15–3237

15–3246

15–3247

15–3249

15–3250

15–3267

15–3268

15–3269

15–3270

15–3273

15–3275

15–3277.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2016.

Decided and Filed: May 4, 2016.

Rehearing En Banc Denied June 28, 2016.

ARGUED: Wendi L. Overmyer, Office of the Federal Public Defender, Akron, Ohio, for Appellants in 15–3212, et al. Joseph P. Morse, Joseph P. Morse & Associates, Cleveland, Ohio, for Appellant in 15–3232. Mark R. Butscha, Jr., Thompson Hine LLP, Cleveland, Ohio, for Appellant in 15–3237. Christine Ku, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Wendi L. Overmyer, Edward G. Bryan, Office of the Federal Public Defender, Akron, Ohio, Nevin E. Johnson, Hudson, Ohio, for Appellants in 15–3212, et al. Joseph P. Morse, Joseph P. Morse & Associates, Cleveland, Ohio, for Appellant in 15–3232. Mark R. Butscha, Jr., John R. Mitchell, Matthew D. Ridings, Holly H. Little, Thompson Hine LLP, Cleveland, Ohio, Joseph B. Rose III, The Rose Law Firm, Cleveland, Ohio, for Appellant in 15–3237. Damian A. Billak, Canfield, Ohio, for Appellant in 15–3231. Robert E. Duffrin, Whalen Duffrin LLC, Boardman, Ohio, for Appellant in 15–3246. Nathan A. Ray, Akron, Ohio, for Appellant in 15–3247. James S. Gentile, Youngstown, Ohio, for Appellant in 15–3267. Samuel G. Amendolara, Amendolara & Rafidi, LLC, Boardman, Ohio, for Appellant in 15–3268. J. Dean Carro, Baker, Dublikar, Beck, Wiley, & Matthews, North Canton, Ohio, for Appellant in 15–3269. Joseph A. Dubyak, Cleveland, Ohio, for Appellant in 15–3270. David C. Jack, Wadsworth, Ohio, for Appellant in 15–3273. Bridget M. Brennan, United States Attorney's Office, Cleveland, Ohio, Diana K. Flynn, Thomas E. Chandler, United States Department of Justice, Washington, D.C., for Appellee.

Before SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge.^*

OPINION

SUTTON

, Circuit Judge.

This is a sequel. In the first appeal, we addressed a jury verdict that convicted sixteen members of the Bergholz, Ohio, Amish community of hate crime and obstruction-of-justice charges stemming from a spate of hair-cutting and beard-shearing attacks. We reversed the hate crime convictions because the relevant jury instruction was inconsistent with an intervening Supreme Court decision. 767 F.3d 585 (6th Cir.2014)

. On remand, the government declined to re-try those charges, and the district court resentenced the defendants on the remaining convictions.

In this second appeal, the defendants challenge their remaining convictions on grounds that could have been, but were not, raised in the first appeal. In addition, the defendants object to certain features of their new, lower sentences. We affirm.

I.

Around 2001, the Bergholz Amish community became a separate church district within the Old Order Amish, one of 474 such districts in Ohio. Its bishop, Samuel Mullet, Sr., exercised considerable influence over the community and assumed the power to “shun” (excommunicate) members who strayed from church doctrine. R. 540 at 296. He used that power in 2006 for several church members who questioned his leadership. Other communities generally may not admit an excommunicated member until he receives forgiveness from the community that first shunned him. The Bergholz excommunications proved to be an exception. Other Amish bishops reversed the decisions in September 2006, agreeing that communities outside Bergholz could admit the excommunicated members.

The excommunications split those who supported Bergholz from those who did not, straining parent-child and husband-wife relationships in the process. One couple divorced and went through a protracted custody dispute, which culminated in a court order that precluded some of Samuel's grandchildren from spending any parenting time in Bergholz. The idea of cutting beards first arose from these events. Some Bergholz residents cut their own beards as a way to atone for the sins that, as they saw it, prompted the loss of the children. When the Bergholz members turned the ritual on others for the sake of punishment, the victims were parents, friends, and others who had criticized the Bergholz practices and had left the community.

Each assault after the excommunications schism proceeded in a similar way. Hired cars facilitated travel between Bergholz and other communities. Several assailants sliced off a man's beard or, in one case, a woman's long hair. Doing so often entailed grabbing a man by his beard, forcing him into a chair, and holding him there as he struggled to avoid the scissors, electric trimmer, or horse shears that robbed him of a defining part of his Amish identity. On at least two occasions, the assailants photographed the events on a disposable camera.

Local enforcement authorities, and eventually the FBI, responded to the attacks. A federal grand jury indicted sixteen Bergholz residents on three types of charges: (1) violating the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, (2) concealing evidence, and (3) lying to the FBI. Each defendant faced at least one of six hate crime counts stemming from the hair-cutting and beard-shearing assaults. 18 U.S.C. § 249(a)(2)

. Several defendants faced counts of concealing evidence, with one count related to hiding the disposable camera. Id. § 1519. Samuel faced a count of lying to the FBI. Id. § 1001(a)(2). All sixteen defendants faced a conspiracy count—that they agreed to commit the hate crimes, conceal the evidence, and lie to the FBI. Id. § 371.

After a ten-day trial, the jury convicted all sixteen individuals on most of the charges. It found they had conspired to commit hate crimes and to conceal evidence but not to lie to the FBI. The jury returned guilty verdicts on five of the six hate crime counts, the obstruction count related to hiding the camera, and the false statement count. The district court sentenced the defendants to terms ranging from one year and a day to fifteen years.

In the first appeal, we reversed the hate crimes convictions based on a faulty jury instruction. United States v. Miller, 767 F.3d 585, 601 (6th Cir.2014)

. On remand, the government declined to retry those counts. That left the district court to resentence the defendants on the remaining convictions: (1) conspiring to conceal evidence (all sixteen defendants), (2) concealing the camera (three defendants), and (3) lying to the FBI (Samuel). The district court resentenced eight defendants to time served. The court resentenced the other eight to terms ranging from forty-three to 129 months. All but one defendant appeals.

II.

Fifteen defendants challenge their extant convictions. But they did not challenge those convictions in their first appeal, and that makes all the difference.

In criminal case after criminal case, we have declined to allow a criminal defendant who fails to challenge part of a conviction in an earlier appeal to raise it in a later appeal. See, e.g., United States v. Traxler, 517 Fed.Appx. 472, 473–74 (6th Cir.2013)

; United States v. Brika, 487 F.3d 450, 464–65 (6th Cir.2007) ; United States v. Adesida, 129 F.3d 846, 849–50 (6th Cir.1997). This approach is “well-settled,” United States v. Henry, 472 F.3d 910, 913 (D.C.Cir.2007) (per curiam), prevents “perpetual litigation,” United States v. McKinley, 227 F.3d 716, 719 (6th Cir.2000), and “encourage[s] compliance with fair and efficient procedure”—above all by encouraging defendants to raise all challenges to a conviction in one appeal, 18B Charles Alan Wright et al., Federal Practice & Procedure § 4478.6 (2d ed.2016). Seeing no fair reason to give full review to these arguments now, especially as no defendant has explained the omissions from the earlier appeal, we decline to break from this consistent practice. The defendants' belated challenges to their convictions—mainly to the sufficiency of the evidence for concealing evidence, for conspiring to do so, and for making a false statement to the FBI—thus fail.

The defendants resist this conclusion on several grounds. First, all fifteen of them argue that we must dismiss the indictment because the district court lacked “jurisdiction” over the crimes. The argument proceeds in four steps: (1) A defendant may raise “at any time while the case is pending” a claim that “the court lacks jurisdiction,” Fed.R.Crim.P. 12(b)(2)

; (2) Congress lacked “jurisdiction” to enact the Hate Crimes Act because the Act exceeds Congress's power under the Commerce Clause; (3) if Congress lacked jurisdiction to pass the Act, the FBI lacked “jurisdiction” to investigate any potential violation of it, 18 U.S.C. §§ 1001, 1519 ; and (4) if the FBI had no jurisdiction to investigate those violations, the federal courts lack “jurisdiction” to hear prosecutions related to that investigation, such as concealing evidence and making false statements.

This argument shows why “ ‘[j]urisdiction’ is a word of many, too many, meanings.” United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996)

; see

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Look at the many ways the defendants use the word here. One relates to congressional power: The Constitution gives “Congress[ ] authority (jurisdiction, if you must) to pass a law.” United States v. Al–Maliki, 787 F.3d 784, 791 (6th Cir.2015). One relates to executive-branch power: To “protect[ ] ... official inquiries,” the FBI's “jurisdiction” for the purposes of obstruction statutes extends to any investigation based on...