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					  Case: 10-1618   Document: 006110629973     Filed: 05/17/2010   Page: 1




                       NO. 10-1618
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE SIXTH CIRCUIT
                         ____________

              UNITED STATES OF AMERICA,

                                       Plaintiff-Appellant,

                                -vs-

            DAVID BRIAN STONE;
          JOSHUA MATTHEW STONE;
 JOSHUA JOHN CLOUGH; MICHAEL DAVID MEEKS;
THOMAS WILLIAM PIATEK; KRISTOPHER T. SICKLES,

                                    Defendants-Appellees.
                           ____________

         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF MICHIGAN
                       SOUTHERN DIVISION
                         ____________

             BRIEF FOR THE UNITED STATES
                           ____________

                                       BARBARA L. McQUADE
                                       United States Attorney

                                       PATRICIA GAEDEKE
                                       Assistant United States Attorney
                                       211 W. Fort Street, Suite 2001
                                       Detroit, MI 48226
                                       Phone: (313) 226-9516
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                                     TABLE OF CONTENTS


TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

WAIVER OF ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

JURISDICTIONAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT

I.      THE DISTRICT COURT FAILED TO PROPERLY APPLY THE
        FACTORS OF 18 U.S.C. § 3142... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        A.      The District Court Incorrectly Assessed the Weight of
                the Evidence on Counts Two, Four and Five. . . . . . . . . . . . . . . . . . . 12

        B.      The District Court Erred in its Assessment of the Weight
                of the Evidence Supporting Count One. . . . . . . . . . . . . . . . . . . . . . . 14

        C.      The District Court Failed to Properly Consider the
                Nature and Seriousness of the Danger Posed by
                Defendants’ Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

II.     THERE IS NO CONDITION OR COMBINATION OF
        CONDITIONS THAT WILL REASONABLY ASSURE THE
        SAFETY OF THE COMMUNITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




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CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE & FILING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

RELEVANT DISTRICT COURT DOCUMENTS.. . . . . . . . . . . . . . . . . . . . . . . . 28




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                                      TABLE OF AUTHORITIES

CASES                                                                                                       PAGE(S)

Brandenburg v. Ohio, 395 U.S. 444 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . 14

United States v. Hazime, 762 F.2d 34 (6th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . 11

United States v. Hir, 517 F.3d 1081 (9th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Mercedes, 254 F.3d 433 (9th Cir. 2001).. . . . . . . . . . . . . . . . 20, 26

United States v. Rahman, 189 F.3d 88 (2d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . 16

United States v. Tortora, 922 F.2d 880 (1st Cir. 1990 ). . . . . . . . . . . . . . . . . . . . . 24



STATUTES                                                                                                    PAGE(S)

18 U.S.C. § 2332a(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12

18 U.S.C. § 2384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 16, 17

18 U.S.C. § 3142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 20, 21

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

18 U.S.C. § 3731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v




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                       WAIVER OF ORAL ARGUMENT

      Consistent with this Court’s usual practice on bond appeals, and mindful of

its obligation to prosecute this appeal diligently, the government waives oral

argument.

                       JURISDICTIONAL STATEMENT

      This is an appeal of an order releasing defendants on bond pending trial in

their criminal case. The district court had jurisdiction over this criminal case

pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 18 U.S.C. §

3731, which provides that “[a]n appeal by the United States shall lie to a court of

appeals from a decision or order, entered by a district court of the United States,

granting the release of a person charged with or convicted of an offense... .”




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                           QUESTIONS PRESENTED

I.    Whether the district court failed to properly apply the factors set forth
      at 18 U.S.C. § 3142 in evaluating whether defendants should be
      released on bond?

II.   Whether any condition or combination of conditions can reasonably
      assure the safety of the community?

                         STATEMENT OF THE CASE

      Defendants are charged with seditious conspiracy in violation of 18 U.S.C.

§ 2384 (count one), attempt to use weapons of mass destruction in violation of 18

U.S.C. § 2332a(a)(2) (count two), and two counts of carrying and using firearms

during and in relation to the crimes of violence charged in counts one and two, as

well as possessing firearms in furtherance of those predicate crimes of violence

(counts four and five). (R. 4: Indictment). Defendants David Stone and David

Stone Jr. were also charged in count three with teaching/demonstrating the use of

destructive devices in furtherance of the federal crime of violence charged in

count one. (Id.).

      Defendants were arrested over the weekend of March 27-28, 2010, except

for defendant Joshua Stone, who was not arrested until the night of March 29,

2010. All defendants but Thomas Piatek appeared for their arraignments and a

bond determination in Detroit on March 30, 2010. After a two day hearing, the

magistrate judge ordered the defendants be detained pending trial. (R. 54-61:

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Orders of Detention). Defendant Piatek appeared and was ordered detained by a

magistrate judge in the Northern District of Indiana, after he had been arrested. (R.

64: Record from Northern District of Indiana).

      All defendants appealed the detention orders to the district court, which

conducted a two day de novo hearing on April 27-28, 2010. (R. 157: 4/27/10

Hearing Tr.; R. 158: 4/28/10 Hearing Tr.). The district court ordered defendants

released, subject to specified conditions. (R. 137: Order of Release). The

government moved for a stay of the district court’s order releasing defendants,

pending appeal to this court. (R. 139: Motion for Stay). The district court granted a

limited stay, but then dissolved that stay, and ordered the defendants’ release the

next day. (R. 151: Order Denying Motion for Extension of Stay). This court then

granted a temporary stay on May 10, 2010. (R. 156: Temporary Stay Order).

      The government now appeals the order releasing defendants David Stone,

Joshua Stone, Joshua Clough, Michael Meeks, Thomas Piatek and Kristopher

Sickles, because there is no condition or combination of conditions which will

reasonably assure the safety of the community. (R. 143: Notice of Appeal).




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                           STATEMENT OF FACTS

      For roughly eighteen months, defendants David Stone, Joshua Stone, Joshua

Clough, Michael Meeks, Thomas Piatek and Kristopher Sickles planned and

prepared for a violent confrontation with law enforcement officers, both federal

and state. (R. 4: Indictment). They acquired a significant arsenal of weapons,

including pipe bombs, components for explosive devices, dozens of firearms and

thousands of rounds of ammunition. (Id.). David Stone alone had 37 firearms in

his residence, (R. 85: 3/31/10 Hearing Tr. at 66), and Thomas Piatek had a similar

arsenal. (GX 4). The men planned to stockpile weapons and provisions at various

sites in rural Michigan, which were to serve as “rally points” once the violence

broke out. (R. 4: Indictment at 5). The men trained as a group, organizing

paramilitary maneuvers such as surveillance, counter-surveillance, insertion,

extraction and target shooting. (R. 137: Order at 9). And they repeatedly solicited

the assistance of another person to help them build several types of explosive

devices. (R. 85: 3/31/10 Hearing Tr. at 16-24).

      Some of these explosive devices were designed to be anti-personnel

devices, which would be loaded with shrapnel so as to maximize the carnage. (Id.).

Other devices were planned to function as shaped charges, which would involve

specific types and shapes of metal which would be deformed in an explosion to


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then serve as lethal projectiles. (Id.). David Stone obtained and circulated

diagrams of the explosive devices that he sought for their mission. (Id. at 43-44)

The men discussed using metallic street signs to become such a shaped charge,

and they then began assembling a collection of such materials. (Id.)

      A search of defendant David Stone’s house the weekend of his arrest

located a significant collection of materials to make such devices. (Id. at 16-24,

66). Agents recovered threaded pipe containers for use in pipe bombs, shrapnel,

electronic matches, cannon fuse, and explosive powder. (Id. at 66; Search warrant

return -2:10-MC-50358E). David Stone’s car contained several street signs,

presumably to be used as the metal component of the shaped charge projectile

devices. (R. 85: 3/31/10 Hearing Tr. at 46).

      All of this preparation for violence was organized by defendant David

Stone. He was the self-proclaimed leader of the Michigan Hutaree, which is a

militia group founded on the principle that government has encroached too far on

the rights of the people. (R. 85: 3/31/10 Hearing Tr. at 8-9). According to Stone,

ordinary people are being oppressed by a “New World Order,” which is taking

away their liberties and must be stopped by force. (Id.). The dictates of the New

World Order are carried out by a complicit federal government and enforced by

“The Brotherhood” of law enforcement agents--federal, state and local. (Id.). The


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Hutaree mission was to train and prepare for the impending war with the foot

soldiers of the New World Order, i.e. law enforcement agents. (Id.). At one point,

the men even discussed killing various federal judges as part of their plan. (R. 85:

3/31/10 Hearing Tr. at 27-28).

         As part of their preparations, the defendants conducted numerous meetings

and training sessions. Defendants David Stone, David Stone, Jr., Joshua Clough,

Michael Meeks, Kristopher Sickles each attended multiple training sessions, and

were an integral part of the Hutaree leadership structure. (R. 4: Indictment). And

each of these men has expressed a desire to kill law enforcement officers. (Gx. 1B,

04/27/10). At some of their meetings, the men have discussed and analyzed at

length various ways in which to kill the maximum number of law enforcement

personnel, such as by attacking a law enforcement funeral (which usually is well

attended by law enforcement officers from throughout the region). (Gx. 1B,

04/27/10). Most of these plans involve the use of explosive devices such as those

they were trying to assemble and create, as well as massive amounts of firearms.

(Id.)

         Unknown to Stone, the person he solicited to make the explosive devices

was an undercover FBI agent. When the defendants began planning training

sessions that would explicitly threaten the safety of civilians, the FBI stepped in


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and arrested the leadership and the most involved members. Although the planned

exercise therefore never came to fruition, it sheds light on the dangers posed by

the progressively virulent plans of the men, because it specifically contemplated

killing civilian bystanders (and of course any law enforcement officers

encountered).

       In that exercise, the men intended to insert a unit of troops into an

unspecified hostile area, establish a presence for an extended period, and practice

surveillance, counter surveillance and extraction. (R. 157: 4/27/10 Hearing Tr. at

14-21). This exercise was described as “a real op” which would “make real

soldiers out of everybody.” Id. According to David Stone, if any member of the

“insertion team” encountered a civilian while on the mission, they were to “treat it

as a hostile situation. That means you put them on the ground. Either putting

bullets in them, or if they just willingly get down on the ground and let you leave

the area peacefully, great.” (Id.)

      In a meeting to discuss the “real op,” held on January 9, 2010, Stone went

on to say that hopefully the mission would be completed peacefully, but “if it’s

not, then so be it.” (Id.). The government played a recording of this conversation at

the detention hearing, and present at the time were David Stone, David Stone, Jr.,




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Joshua Stone, Joshua Clough, Michael Meeks, Kristopher Sickles and Jacob

Ward. (R. 137: Order at 20).

      When David Stone described this mission to the men assembled, defendant

Josh Stone exhorted the others “don’t be afraid to pull the trigger on anybody, if

we have to,” and if they ended up shooting an innocent bystander, then “welcome

to your first training of really shooting someone.” (R. 137: Order at 14-15). The

men then further discussed whether violence might result from this encounter with

an unsuspecting civilian, during which David Stone made statements such as

‘[p]utting bullets through bodies ain’t a easy thing, but hey, you do it a couple of

times, it don’t bother you.” (R. 157: 4/27/10 Hearing Tr. at 20). David Stone also

instructed the men to make sure that they wiped down all the bullets and casings

that they were to bring with them on the mission, presumably to erase all

fingerprint evidence. (Id.)

      After Joshua Stone had exhorted the other men not to be afraid to “pull the

trigger on anybody,” he was asked who these victims might be. (Id.). He

responded: “I don’t know and frankly I don’t care. If they catch us then we have to

do our job. Welcome to...being in the business of shooting people.” (Id.). Present

at this time were David Stone, David Stone Jr., Joshua Stone, Joshua Clough,

Michael Meeks, Kristopher Sickles, and Jacob Ward. (R. 137: Order at 20-21).


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And despite the virulent and violent nature of such planning and exhortations,

several of the men went on a trip to Kentucky for a militia summit, and all but

David Stone Jr., returned for the February 20, 2010 training of the Hutaree. (Id.).

      Because tape recordings of these statements were played at the detention

hearing or transcripts of them were read into the record, the defense generally did

not contest that the statements were made, but instead suggested that it was “just

talk.” See, e.g. R. 158: 4/28/10 Hearing Tr. at 9(“it is braggadocio, it is what it

is”). But talk that constitutes an agreement to oppose the government of the United

States by force, or to oppose the execution of the laws by force, is a violation of 18

U.S.C. § 2384. The grand jury found probable cause to believe that the defendants

had in fact agreed to oppose by the force the government and the laws of the

United States. (R. 4: Indictment). The grand jury also found probable cause to

believe that the men had in fact attempted to obtain the explosive devices and

weapons of mass destruction that would be used to carry out the planned attacks.

(Id.). And the grand jury found probable cause to believe that the men had used,

carried and possessed firearms in furtherance of these crimes. (Id.).




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                         SUMMARY OF ARGUMENT

      The district court failed to properly apply the factors set forth in 18 U.S.C.

3142. The court wholly failed to consider the weight of the evidence supporting

counts two through five, and that evidence was strong. The district court also

misconstrued the nature of the charges and the evidence against the defendants in

count one, seditious conspiracy. The court erroneously concluded that the

government was required to show that defendants incited imminent violence, and

that such violence was intended to overthrow the government of the United States.

In fact, the government is only required to show that defendants conspired to

oppose by force the government or the execution of the laws of the United States.

      The district court also failed to correctly assess the nature and seriousness of

the danger posed by defendants’ release. The court focused exclusively on the

nature of the charges, and ignored the separate statutory factor of the seriousness

of the danger posed. Here, the danger was unacceptably high, for defendants had

amassed an alarming number of firearms, ammunition and explosive device

components, all in service of a plan to attack and kill as many law enforcement

agents as possible. The nature and seriousness of this danger mandates detention,

particularly in light of the Congressional presumption that defendants facing these

charges should be detained.


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      Finally, the district court erroneously concluded that there were conditions

of release that could reasonably assure the safety of the community. The

conditions suggested are ineffectual to alleviate the danger, and they rely too much

on defendants’ good faith compliance. In light of the seriousness of the charges,

the nature and seriousness of the danger, and the presumption of detention, there is

no condition or combination of conditions that will reasonably assure the safety of

the community. Therefore, the defendants must be detained.




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                                   ARGUMENT

I.    THE DISTRICT COURT FAILED TO PROPERLY APPLY THE
      FACTORS OF 18 U.S.C. § 3142.

      On appeal of a bail decision, this Court reviews factual findings for clear

error, and legal determinations de novo. United States v. Hazime, 762 F.2d 34, 37

(6th Cir. 1985). Mixed questions of law and fact are reviewed de novo. Id.

      The decision whether to detain or release a defendant pending trial is

governed by 18 U.S.C. § 3142. Under that statute, a district court is required to

determine whether any condition or combination of conditions will reasonably

assure the safety of any other person or the community. In making that

determination, the court is directed to consider four specific factors: 1.) the nature

and circumstances of the offense, including whether the offense is a crime of

violence . . . or involves a firearm, explosive or destructive device; 2.) the weight

of the evidence; 3.) the history and characteristics of the person; and 4.) the nature

and seriousness of the danger to any person or the community that would be posed

by the defendant’s release. 18 U.S.C. § 3142(g).

      Here, the district court made clearly erroneous factual findings, committed

legal error, and incorrectly determined that there were conditions of release that

would reasonably assure the safety of the community.




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      A.     The District Court Incorrectly Assessed the Weight of
             the Evidence on Counts Two, Four and Five.

      The district court committed several errors in evaluating the weight of the

evidence pursuant to 18 U.S.C. § 3142(g)(2). As a threshold matter, the district

court erroneously failed to consider the weight of the evidence as to counts two

through five entirely. (R. 137: Order at 24)(“While the Court has not analyzed the

evidence pertaining to other charges against Defendants, those charges all relate to

the Seditious Conspiracy charge.”). The district court apparently believed that all

of the counts of the indictment hinged on the validity of count one, but that is

incorrect.

      Count two, for example, charges all defendants with attempting to use

weapons of mass destruction in violation of 18 U.S.C. § 2332a(a)(2). This count

carries a presumption of detention, and the government proffered significant

evidence of defendants’ guilt. The government indicated that the undercover agent

had demonstrated explosive devices to the defendants, the defendants had shown

him their own explosive devices, and the defendants had engaged in extended

discussions with the undercover trying to develop more destructive explosive

devices. The defendants had also sent plans for shaped charges to the undercover

agent, and several of the defendants had acquired numerous street signs, in order

to use that particular type of metal in the “shaped charge” explosive devices they

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were designing. (R. 85: 3/31/10 Hearing Tr. at 43-44). Moreover, David Stone

had accumulated tubes, powder, electronic matches and shrapnel to be used in

other destructive devices such as pipe bombs and “bouncing bettys.” (R. 85:

3/31/10 Hearing Tr. at 19, 34-35, 43-44).

      All of this conduct is illegal under § 2332a, wholly independent of the

charge in count one. In light of the presumption of detention afforded this offense,

and the fact that the defendants expressly stated that they sought to obtain these

explosive devices and pipe bombs in order to kill large numbers of law

enforcement officers, the weapons of mass destruction charge alone should have

resulted in the detention of the defendants. It was error for the district court to fail

to consider the evidence as to count two as a basis for detention.

      The same analysis holds with respect to counts four and five, each of which

also carry their own presumption of detention. Although those counts do identify

seditious conspiracy as a predicate crime of violence, both counts four and five

also identify the explosive device offense charged in count two as a predicate

crime of violence. Therefore, it was error for the district court to fail to consider

the evidence as to these counts as well. Since the evidence on these counts was

also largely undisputed and straightforward, the weight of the evidence strongly

favored detention, and the district court erred in failing to consider it.


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      B.     The District Court Erred in its Assessment of the Weight
             of the Evidence Supporting Count One.

      The district court also erroneously assessed the weight of the evidence with

respect to count one, the seditious conspiracy charge. With respect to this count,

the defendants did not generally dispute having attended the meetings and training

sessions, or that the particular commands were issued or words spoken. Rather, the

defendants generally claimed that: 1.) they did not really mean the things they

said, or 2.) even though they repeatedly came together to plan to kill law

enforcement agents and trained to do so they did not really subscribe to the

common plan, or 3.) such speech was constitutionally protected anyways. The

district court uncritically accepted these assertions and gave them great weight in

assessing the seriousness of the charges. This was error.

      Courts traditionally give very little weight to the strength of the evidence

against a particular defendant when assessing whether any combination of

conditions will reasonably assure the safety of the community. United States v.

Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). This makes eminent sense, for

detention hearings are almost always conducted at the very outset of a case, and

neither the government nor the district court is in a position to fully assemble or

evaluate the complete spectrum of evidence that will be brought to bear. This is

particularly true in a case such as this, with nine defendants charged with multiple

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counts, spanning a two year conspiracy to commit numerous crimes, where the

jury verdict will likely turn on fine grained distinctions as to each defendant’s

particular knowledge and intent. It was error to rest the detention decision here

almost entirely on the district court’s assessment of the weight of the evidence, in

the face of the Congressional determination that dangerousness should be

presumed.

      To the extent that the district court should have considered the evidence at

all with respect to count one (in light of counts two through five), the court was

obligated to apply the correct law and make correct findings of fact. It did not do

so. First, the court determined that the conduct of the defendants should be

considered political speech, entitled to special protection and imposing a higher

burden for the government, including the requirement that the government prove

that violent action was imminent.

      The court relied on Brandenburg v. Ohio, 395 U.S. 444 (1969), for this

principle. But Brandenburg is inapposite, for it involved a charge of illegal

advocacy. 395 U.S. at 448-49. The crime charged in count one here was not

advocacy, or political speech at all, but rather an agreement to commit acts of

violence against specific persons and unsuspecting bystanders. The defendants

here are not charged with having made speeches or advocated certain ideas, but


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with conspiring, planning and training to oppose by force federal and state law

enforcement agencies. (R. 4: Indictment at 3-7). The law is clear that agreements

to commit illegal acts are not protected speech, but rather may be criminalized just

like other agreements and conduct. See, e.g., United States v. Rahman, 189 F.3d

88, 115-17 (2d Cir. 1999)(upholding conviction under 18 U.S.C. § 2384 against

constitutional challenge because the statute criminalizes conspiracy to use force,

not advocacy of the use of force).

      The district court also erred in its understanding of the object of the

conspiracy. Focusing on one excerpt from one speech given by David Stone, the

court concluded that the members of the conspiracy did not intend to use force to

oppose the authority of the United States, but instead that they simply wanted to

“reclaim America,” not overthrow the government. (R. 137: Order at 14). Not only

was the conspiracy much broader than that, but conspiring to use explosive

devices and firearms to “reclaim”America from its current government by killing

law enforcement officers is a violation of 18 U.S.C. § 2384. The district court

erred in failing to recognize this.

      Similarly, the district court quoted various defendants at length regarding

their plans to kill law enforcement officers, (R. 137: Order at 16-20), but

dismissed this as irrelevant because the court believed that killing federal judges


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and law enforcement officers does not equate to overthrowing or levying war

against the United States. (R. 137: Order at 1, 15)(“No proffer was offered that

defendants ... “put in place a plan to ‘overthrow, put down or destroy by force the

Government of the United States, or to levy war against them’”). According to the

district court, therefore, the evidence was weak as to count one.

      But in reaching this conclusion, the district court overlooked the language

of the indictment that charges defendants with having conspired 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.” (R. 4: Indictment at 3).

This language tracks the terms of 18 U.S.C. § 2384, and killing federal officials

and law enforcement agents who would enforce the laws of the United States is

sufficient to set out a violation of the statute. And the evidence of this agreement,

and the acts in furtherance of this agreement, was strong, not weak. The district

court erred in focusing on whether defendants conspired to overthrow the entire

federal government.

      The district court also appeared to conclude that there was inadequate

evidence that the object of the planned violence was federal in nature. This too

was error. In reaching this conclusion, the district court apparently focused on the

fact that much of David and Josh Stone’s rhetoric spoke generically of “law


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enforcement” and “police,” without specifically indicating whether federal law

enforcement agents were included within the scope of the planned violence. It is

true that much of the planned violence was to be directed at state and local

officials, but the law does not require that defendants intend their violence

exclusively against federal targets – indeed, the federal targets could be a very

small part of the overall objective.

      What is more, the district court overlooked the evidence that was proffered

to show that the plan for violence was in fact directed, at least in part, at federal

officials. Among the principal wrongs that motivated the men were the federal

raids upon armed militia group at Waco, Texas.

       For example, in a conversation recorded on February 20, 2010, a transcript

of which was introduced on April 27, 2010 as Government Exhibit 1B, David

Stone repeatedly refers to violence against federal agents, in revenge for their

having “burnt Waco down.” (GX 1B at 5). Defendants Joshua Stone and

Kristopher Sickles also make reference to Waco, in a conversation focused on all

the different ways the men could kill law enforcement officers. (Id. at 4). And

David Stone repeatedly refers to “the feds” and suggests that when the 4000

federal agents do get directly involved in the fight against the Hutaree and their

allies, “that’ll last three seconds.” (Id. at 5). And although the ultimate “enemy” is


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described generically as the New World Order, defendant Robert Stone

acknowledged that the New World Order would not be sending in blue helmeted

United Nations forces because it already operated in this country through “Interpol

law enforcement mercenaries,” i.e. federal law enforcement agents. (R. 137: Order

at 14).

          In fact, the group mobilized on high alert for some version of apocalyptic

war in December, 2008, in response to an ATF raid on a gun dealer known to

them. (R. 85: 3/31/10 Hearing Tr. at 12-13). Defendant Joshua Clough sent out an

alert regarding the ATF actions, and specifically stated “we have and will return

fire. Will you?” (Id.). David Stone later sent an email indicating that “Here we go.

Looks like ATF enforcers are looking for a reason to start a firefight and we will

answer the call. All Hutaree members contact me immediately.” (Id.).

          Their hatred of federal officials was not limited to the ATF or FBI, either,

for David Stone, Michael Meeks and others discussed a list of persons to be killed

that contained a number of federal judges on it. (R. 85: 3/31/10 Hearing Tr. at 27-

28). And at another point, defendant Meeks referred to Sen. Edward Kennedy as

part of the “the enemy” of the Hutaree. (R. 137: Order at 22)(“They [will] find out

they bleed like everyone else”). The district court was simply mistaken when it

concluded that the conspiracy was not sufficiently focused on federal authorities.


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      And to the extent that on occasion the men failed to explicitly differentiate

between state and federal enemies in their hatred and planned violence, it would

be illogical to conclude that the community is safe because the men planned to kill

both state and federal law enforcement officers. The district court misapprehended

the nature of the charges in the indictment, the evidence that will be introduced at

trial in support of those charges, and the extent to which those factors mandate

detention in this case.

      C.     The District Court Failed to Properly Consider the
             Nature and Seriousness of the Danger Posed by
             Defendants’ Release.

      In determining whether to grant bail, district courts are required to consider

both “the nature and circumstances of the crime charged,” 18 U.S.C. § 3142(g)(1),

and “the nature and seriousness of the danger to any person and the community

that would be posed by [the defendant’s] release.” 18 U.S.C. § 3142(g)(4). Here,

the district court repeatedly discussed the seriousness of the seditious conspiracy

charge, but failed to give it proper weight. Cf. United States v. Mercedes, 254 F.3d

433 (9th Cir. 2001)(conspiracy to commit armed robbery of drug dealers “weighs

heavily against release”). But more significantly, the court failed to properly

consider the nature and seriousness of the danger posed by the release of the




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defendants, as required by § 3142(g)(4). In the view of the government, this is the

single most important factor.

      The defendants amassed an arsenal of weapons – explosives, pipe bombs,

short barrel shotguns, AR-15s, dozens of long guns, and tens of thousands of

rounds of ammunition. They trained repeatedly, practicing military maneuvers

such as surveillance, insertion into hostile territory, extraction and live fire

training. All of these actions were to be prepared for a showdown with law

enforcement. Each of the defendants now on appeal has repeatedly stated a desire

to kill law enforcement officers. They have discussed who they will kill, and how

they will kill them. They have created scenarios designed to maximize the number

of law enforcement agents who they can kill at any one time, such as by attacking

a law enforcement funeral. And they have planned to defeat the “New World

Order” by killing so many officers that the remaining law enforcement personnel

quit for fear of dying. (GX 1B, 4/27/10). And defendants David Stone, Michael

Meeks and Kristopher Sickles have all stated a desire to die by having the police

kill them. (R. 85: 3/31/10 Hearing Tr. at 43).

      It is difficult to imagine a more grave danger to society than heavily armed

men, facing extremely long prison sentences, who have spent two years planning

and training to go to war with law enforcement. Defendants may claim that they


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were insincere in their statements, but their weapons were real, and so is the

danger if they are released. The district court failed to assign proper weight to this

factor.

      To the extent that the district court considered this factor at all, its analysis

wholly missed the mark. For example, the district court observed that there were

other Hutaree members who had not yet been indicted. (R. 137: Order at 21).

According to the district court, this somehow made the crimes charged less

serious, and presumably the danger posed similarly less serious. (Id.). It is unclear

how this can be so–indeed, the fact that there are other persons at large who share

similar views and have assisted these defendants in their mission makes the

contemplated release more dangerous, not less. And the court surely cannot be

faulting the government for only indicting those persons as to whom there was

sufficient evidence at this stage of the proceedings to indict.

      In similar fashion, the district court summarily dismissed the fact that David

Stone and David Stone Jr. possessed illegal short-barrel firearms. The court

appeared to conclude that such weapons would be relevant to the danger only if

the men had already used them to commit an assaultive crime. (R. 137: Order at

23). But the fact that men who plan to kill law enforcement officers can create or

obtain illegal firearms must be significant.


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        Equally unfounded is the district court’s apparent belief that since the FBI

had seized the firearms and ammunition that they located during the searches

when defendants were arrested, the defendants would therefore be without access

to firearms. (R. 137: Order at 23). But this is unfounded speculation, particularly

in light of the fact that the men clearly had access to illegal weapons, and they had

discussed stockpiling caches of weapons and food for use when the violence broke

out.

        Similarly, the district court observed that “there is no evidence that the

agents found explosive devices,” and considered this fact to mitigate in favor of

release. (R. 137: Order at 24). It is true that there were no fully assembled devices

found, but this observation overlooks the information that David Stone did have a

full complement of the necessary components to make explosive devices. And

possession of bomb components by a man actively seeking additional devices and

an avowed intention to kill law enforcement does not mitigate the danger posed by

his release. The district court erred in its assessment of the nature and seriousness

of the danger posed by defendants’ release, and that factor alone warrants

detention.




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II.    THERE IS NO CONDITION OR COMBINATION OF
       CONDITIONS THAT WILL REASONABLY ASSURE THE
       SAFETY OF THE COMMUNITY.

       Each of the defendants is subject to a presumption that no condition or

combination of conditions will reasonably assure the safety of the community if

they are released. The district court concluded that because the defendants have

long ties to their community and sporadic employment histories, they have

rebutted the presumption and there are conditions can reasonably assure the safety

of the community. But as set forth above, the district court’s assessment of the

statutory factors was deeply flawed and the seriousness of the danger posed by

release requires detention pending trial.

       The district court suggested that it recognized the danger, but believed that

it could impose certain conditions that would sufficiently alleviate the danger. But

the conditions imposed relate much more to the likelihood of defendants’ risk of

flight than the danger posed. And almost all of the conditions suffer from a

significant flaw – they rely on the good faith of the defendants to comply. This

alone makes them inadequate to assure the safety of the community. United States

v. Hir, 517 F.3d 1081, 1092 (9th Cir. 2008)(noting inefficacy of conditions to

assure safety of community when the conditions depend almost entirely on

defendant’s good faith compliance); accord United States v. Tortora, 922 F.2d


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880, 886 (1st Cir. 1990 )(noting similar conditions suffer from an “Achilles Heel”

because they hinge on defendant’s willingness to comply).

      Defendants may suggest that this flaw is not fatal because they were ordered

released to third party custodians, who will promise to report any non-compliance.

But that solution is illusory, for several reasons. First, each of the proposed

custodians is directly or indirectly related to the defendant whose compliance they

would undertake to monitor, putting them in an untenable position. And several of

the custodians are employed, and would not even be available to monitor their

charge during much of the day. And the defendants were to be released back to the

locations where the planning, training and stockpiling of weapons took place.

There can be no assurance that the FBI has located all weapons available to these

defendants, or that defendants will be unable to obtain any others. In light of the

dangers posed, third party custodians and travel restrictions will simply not assure

the safety of the community.

      The presumption of detention was established for a case just such as this,

and the defendants’ limited evidence of ties to the community cannot offset their

efforts to obtain explosive devices, illegal weapons and an arsenal of firearms in

order to be able to kill the maximum number of law enforcement personnel. Even

when defendants can rebut a presumption of dangerousness, the presumption does


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not drop away, but remains as a relevant factor. United States v. Mercedes, 254

F.3d 433, 436 (9th Cir. 2001).

                                  CONCLUSION

      For all of the foregoing reasons, the decision of the district court should be

reversed, and the orders of detention be reinstated.

                                              Respectfully submitted,

                                              BARBARA L. McQUADE
                                              United States Attorney

                                              s/ Patricia Gaedeke
                                              PATRICIA GAEDEKE
                                              Assistant United States Attorney
                                              211 W. Fort Street, Suite 2001
                                              Detroit, MI 48226
                                              Phone: (313) 226-9516
                                              E-Mail: Patricia.Gaedeke@usdoj.gov
Dated: May 17, 2010




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                   CERTIFICATE OF SERVICE & FILING

      I certify that on this 17th day of May, 2010, I electronically filed the

foregoing Brief for the United States with the Clerk of the United States Court of

Appeals for the Sixth Circuit using the ECF system which will send notification of

such filing to the following:

                William W. Swor, Attorney for David Brian Stone
                  James C. Thomas, Attorney for Joshua Stone
                Randall C. Roberts, Attorney for Joshua Clough
               Mark A. Satawa, Attorney for Michael David Meeks
               Henry M. Scharg, Attorney for Kristopher T. Sickles
               Arthur Weiss, Attorney for Thomas William Piatek



                                              s/ Patricia Gaedeke
                                              PATRICIA GAEDEKE
                                              Assistant United States Attorney




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               RELEVANT DISTRICT COURT DOCUMENTS

Appellee, hereby cites to the following documents in the district court’s record:

 REF.        DOCUMENT DESCRIPTION                                      DATE
 NUMBER
 R. 4        Indictment                                                03/29/10
 R. 54       Order of Detention - David Brian Stone                    04/02/10
 R. 55       Order of Detention - David Brian Stone, Jr.               04/02/10
 R. 56       Order of Detention - Joshua Matthew Stone                 04/02/10
 R. 57       Order of Detention - Tina Mae Stone                       04/02/10
 R. 58       Order of Detention - Joshua John Clough                   04/02/10
 R. 59       Order of Detention - Michael David Meeks                  04/02/10
 R. 60       Order of Detention - Kristopher T. Sickles                04/02/10
 R. 61       Order of Detention - Jacob J. Ward                        04/02/10
 R. 64       Record received from Northern District of Indiana         04/02/10
 R. 85       Transcript - Detention Hearing held 03/31/10              04/14/10
 R. 137      Order Granting Defendants’ Motions for Revocation         05/03/10
 R. 139      Motion to Stay                                            05/03/10
 R. 143      Notice of Appeal                                          05/05/10
 R. 151      Order Denying Motion for Extension of Stay                05/05/10
 R. 156      Temporary Stay Order                                      05/10/10
 R. 157      Transcript - Bond Review Hearing held 04/27/10            05/11/10
 R. 158      Transcript - Bond Review Hearing held 04/28/10            05/11/10




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