Hutaree Brief
Hutaree Brief
Hutaree Brief
Defendants.
_______________________________/
During the detention hearing on April 28, 2009, the Court raised a concern about the
government’s ability to establish, pursuant to Brandenburg v. Ohio, 395 U.S. 444 (1969), that there
was an “imminent” harm or act of violence. However, as the facts presented do not reflect "mere
advocacy", but rather speech-related conduct which includes the agreement of two or more persons
to levy war against the United States, there is no requirement for the United States to establish an
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DISCUSSION
The free speech guarantee of the First Amendment has been interpreted by the U.S. Supreme
Court to extend to speech advocating illegal conduct, and regulation of such speech is permissible
only in narrow circumstances: "the constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where
such advocacy is directed to inciting or producing imminent lawless actions and is likely to incite
or produce that action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). In
Brandenburg, the Supreme Court struck down Ohio's Criminal Syndicalism Act, which aimed to
punish:
Id. at 448 (internal quotation marks omitted). The indictment charged that the defendant, a leader
at a Ku Klux Klan rally, "did unlawfully by word of mouth advocate or teach the necessity, or
reform." Id. at 449 n.3. In striking down the statute, the Court explained that "we are confronted with
a statute which, by its own words and as applied, purports to punish mere advocacy. ... Such a statute
falls within the condemnation of the First and Fourteenth Amendments." Id. at 449.
criminalizing the solicitation to commit acts of violence, conspiracy, and aiding and abetting. More
specific laws forbid seditious conspiracy; advocating the overthrow of the government; teaching
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arms-making; mailing material that incites murder, assassination, or arson; and providing material
Specifically, Title18 United States Code, Section 2384 prohibits seditious conspiracy, that
is, conspiring to use force to overthrow or oppose by force the government. The statute simply
requires proof that two or more persons conspired in a place subject to United States jurisdiction.
In a leading seditious conspiracy case, United States v. Rahman, 189 F.3d 88, 116-17 (2nd Cir. 1999)
(per curiam), Sheik Rahman, in a speech to his followers, instructed them to "'do jihad with the
sword, with the cannon, with the grenades, with the missile ... against God's enemies.'" Id. at 104
(citation omitted). He spoke about jihad at a conference, id. at 107, and issued a fatwah on a plan to
bomb the UN. Id. at 109. In Rahman, the court rejected the defendant's facial and as-applied First
Amendment challenges to the statute. Rahman, 189 F.3d at 116-17. The court considered evidence
that the defendant said to a co-conspirator that he "'should make up with God ... by turning his rifle's
barrel to President Mubarak's chest, and kill[ing] him,'" that he urged another conspirator to "'[c]arry
out this operation .... Go ahead,'" and that he assured another that "'it's a duty'" to bomb the UN
headquarters. Id. at 117 (quoting transcript). The court concluded that these were words "that
instruct, solicit, or persuade others to commit crimes of violence," and were therefore not
"immunize[d]" by the First Amendment from prosecution. Id. at 117. Brandenburg restrictions did
not apply because the crime charged was conspiring to "use" force, not to "advocate" the use of
To prove a violation of 18 U.S.C. § 2384, the government must prove the following
elements:
1. The defendant knowingly conspired with one or more persons to do one or more of
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the following—
e. seize, take, or possess by force any U.S. property contrary to the authority of
2. The conspirators conspired in a place subject to the jurisdiction of the United States.
There is no requirement (i.e. an element) that the United States establish that there was an
“imminent” harm. Rather, that it must simply show an agreement to oppose by force the authority
As stated in Count one of the Indictment, the defendants conspired to "levy war against the
United States, to oppose by force the authority of the Government of the United States, and to
prevent, hinder and delay by force the execution of any United States law." The central purpose and
discussion of the Hutaree and their leader, David Stone Sr., centered on the concept of operations
that the Hutaree would commit some violent act to draw the attention of law enforcement or
government officials and which would prompt a response by law enforcement. Acts discussed
included killing a member of law enforcement after a traffic stop, killing a member of law
enforcement and his family at home, ambushing a member of law enforcement in rural communities,
luring a member of law enforcement with a false 911 emergency call and then killing him or her, and
killing a member of law enforcement and then attacking the funeral procession motorcade with
Weapons of Mass Destruction. The Hutaree were trained and instructed that once such action was
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taken, they would retreat to one of several "rally points" where the Hutaree would wage war against
the government and be prepared to defend with trip-wired and command detonated anti-personnel
IEDs, ambushes and prepared fighting positions. The Hutaree believe that this engagement would
then serve as a catalyst for a more wide-spread uprising against the Government. The facts presented
do not reflect "mere advocacy", but rather speech-related conduct which includes the agreement of
two or more persons to levy war against the United States. Further, even though 18 U.S.C. § 2384
does not require overt acts, numerous overt acts in furtherance of this agreement have been pled and
have been presented to the court during the various detention hearings.
Moreover, given the gravity of the planned future operations (i.e., killing a member of law
enforcement then attacking the funeral procession with IED/EFP), the prosecution of the defendants
for conspiracy is appropriate in order to prevent the conspiracy from ripening into actual violent
actions. "Congress enacted Section 2384 to help the government cope with and fend off urban
terrorism. . . . Section 2384 provides a vehicle for the government to make arrests before a
conspiracy ripens into a violent situation. The government's interest in thwarting such plans and in
safeguarding public security is unquestioned." United States v. Rodriguez, 803 F.2d 318, 320 (7th
Cir. 1986).
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CONCLUSION
Based upon the charges pled in the indictment and the forgoing information provided to the
Court, there is no requirement for the United States to establish an "imminent" harm under
Brandenburg.
Respectfully submitted,
BARBARA L. MCQUADE
United States Attorney
s/Ronald W. Waterstreet
RONALD W. WATERSTREET
Assistant United States Attorney
s/Joseph L. Falvey
JOSEPH L. FALVEY
Assistant United States Attorney
211 West Fort Street, Suite 2001
Detroit, Michigan 48226-3220
Phone: 313-226-9610
Email: Joseph.Falvey@usdoj.gov
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CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2010, I electronically filed the foregoing document with the
Clerk of the Court using the ECF system which will send notification of such filing to the following:
s/Ronald W. Waterstreet
Assistant United States Attorney
211 West Fort Street, Suite 2001
Detroit, Michigan 48226-3220
Phone: 313-226-9593
Email: Ronald.Waterstreet@usdoj.gov