Case Nos. 03-1351, 03-1345, 03-1347

IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

-vs-

ARDETH PLATTE,
CAROL GILBERT and
JACKIE MARIE HUDSON,

Defendants-Appellants

On Appeal from the United States
District Court for the District of Colorado

JOINT REPLY BRIEF OF APPELLANTS

Susan J. Tyburski: Attorney for Appellant Gilbert

Scott T. Poland: Attorney for Appellant Platte

Clifford J. Barnard: Attorney for Appellant Hudson

THE APPELLANTS REQUEST ORAL ARGUMENT

Susan J. Tyburski, Esq.
Boyle & Tyburski
1800 Gaylord Street 215
Denver, Colorado 80206
Telephone: (303) 333-9800, ext. 122
Facsimile: (303) 322-9546
Attorney for Appellant
Sister Carol Gilbert

Scott T. Poland, Esq.
Poland & Wheeler
S. Wadsworth Ave., #500
Lakewood, Colorado 80226
Telephone: (303) 969-8300
Facsimile: (303) 986-4857
Attorney for Appellant
Sister Ardeth Platte

Clifford J. Barnard
1790 30th Street, Suite 280
Boulder, Colorado 80301-1033
Telephone: (303) 449-2543
Facsimile: (303) 444-6349
Attorney for Appellant
Sister Jackie Marie Hudson


TABLE OF CONTENTS

Table of Contents..................................................................................................... i
Table of Authorities.................................................................................................. ii
I. Arguments............................................................................................................. 1
A. The court’s definition of “national defense” materials” was unconstitutionally
vague and over-broad.................................................................................................1

B. The government failed to prove the Sisters knew the almost inevitable result
of their actions would be injury to the national defense; therefore, the charge of
sabotage under § 2155 must be dismissed................................................................... 9

C. The district court erred in denying the Sisters’ request for
a good faith jury instruction .........................................................................................15

II. Conclusion............................................................................................................. 27
Certificate of Compliance............................................................................................ 32
Certificate of Service ...................................................................................................33


TABLE OF AUTHORITIES

Cases

Statutes

Other Authorities

 IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

Case Nos. 03-1351, 03-1345, 03-1347

THE APPELLANTS, Sister Ardeth Platte, Sister Carol Gilbert and Sister Jackie Marie Hudson, by and through their respective attorneys, hereby submit the following Joint Reply Brief of Appellants in the above-captioned matter.

I. ARGUMENTS

A. THE COURT’S DEFINITION OF “NATIONAL DEFENSE” WAS UNCONSTITUTIONALLY VAGUE AND OVER-BROAD.

      In essence, the definition for “national defense” given in this case instructed the jury to convict the Sisters of sabotage if the jury found that the Sisters had intended to injure or interfere with a military establishment and that they wilfully injured military material or any military establishment. As such, these instructions, and thus the sabotage statute, 18 U.S.C. § 2155, were vague and over-broad as applied and violated the Sisters’ Fifth and Sixth Amendment due process rights.
      The indictment charged that the Sisters, “with intent to injure, interfere with and obstruct the national defense of the United States, did wilfully injure, attempt to injure and contaminate any national-defense material or national-defense premises of the United States.” Jury Inst. No. 15. In then defining “national defense,” the court instructed the jury that, “[t]he term ‘national defense’ as used in ... Section 2155 ... is a generic concept of broad connotations referring to military establishments and the related activities of national preparedness.” Jury Inst. No. 16 (emphasis added). Because “national preparedness” is the purpose of all military establishments, this definition of “national defense” meant nothing more than a “broad connotation” regarding all military establishments and any activity on any military establishment.
       In this definition, one of the key, over-broad terms was “related activities” which refers to a vast array of activities without limit as long as they relate to the military. As such, the definition of “national defense” was not sufficiently clear or limiting to place a reasonable person on notice as to what the statute prohibited.

1. The trial court’s definition of “national defense” was not sufficiently delimiting so as to fall under the Supreme Court decision in Gorin.

      The government claims that the delimiting words in the espionage statute in United States v. Gorin, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed.2d 488 (1941) were so similar to the sabotage statute in the Sisters’ case that Gorin cannot be distinguished:

[t]he “delimiting words” ... that saved the statute [in Gorin] from uncertainty as to “whether a contemplated action is criminal under the provision of this law,” were that the defendants act with the intent that information in question was to be used to the injury of the United States or to the advantage of any foreign nation. “This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.” Id. at 28.

Like the espionage statute under consideration in Gorin, section 2155(a) [in the Sisters’ case] contains a stringent scienter element, requiring as a prerequisite to conviction that a person act not only “with intent to injure, interfere with, or obstruct the national defense,” but also act willfully to “injure, destroy, contaminate or infect any national-defense” material or premises. Section 2155(a) thus contains two scienter requirements, which preclude conviction of those who act from inadvertence, innocence, or mistake.

Appellee’s Answer Brief at 13-14 (emphasis added).
      First of all, these were not the only delimiting words in Gorin that saved the espionage statute. Secondly, the words in the Sisters’ case did not delimit the sabotage statute and thus did not save the sabotage statute. The delimiting wording in Gorin, Kabat and the Sisters’ case were as follows:

     The only potentially delimiting jury instruction in the Sisters’ case was the court’s defining “national defense” to be “a generic concept of broad connotations referring to military establishments and the related activities of national preparedness.” Jury Instr. No. 16 (emphasis added). There is a significant difference between “related activities of national preparedness” as set forth in the Sisters’ case and “the nation’s capacity to wage war and defend attacks” as set forth in Kabat and “to the injury of the United States, or to the advantage of any foreign nation,” “connected with the defense of our nation against its enemies,” “instruments for defending our nation,” and “for the defense of the United States of America” as set forth in Gorin.
      As noted above, the government claims that the definition of “national defense” in the Sisters’ case was properly delimiting when it referred to acts done with the intent “to injure ... the national defense,” and to “injure ... any national-defense” material or premises. However, using itself (“national defense”) to define itself (“national defense”) does not in any way delimit the term. The additional terms and requirements in Gorin, on the other hand, did not include the words “national defense” to delimit “national defense;” rather, Gorin delimited “national defense” by requiring that the defendants intended, inter alia, the prohibited activity to injure the United States or to give advantage to a foreign nation. In the Sisters’s case, however, “intent to interfere ... with national defense” in no way further defined or delimited the term “national defense.” Thus, Gorin is clearly distinguishable from the Sisters’ case.
     The delimiting words in Gorin and Kabat defined the prohibited activity; the words in the Sisters’ case were not delimiting when they permitted conviction if a person had, with the intent to injure a military establishment or activity, injured anything on the military establishment. The definition of “national defense” as applied in this case was over-broad and violative of the Sister’s due process rights.

2. § 2155's scienter requirement, when applied to the Sisters’ case, did not provide sufficient notice of the conduct being proscribed.

      The government claims that, “the statutory prohibitions against wilfully damaging government property and intentionally interfering with national defense would put a reasonable person on notice of the criminality” of the Sisters’ conduct. (AAB at 15.) However, this argument begs the question; if “national defense” means nothing more than a military establishment, then a reasonable person might be on notice that going onto a military establishment, cutting 32 feet of fence and placing it on the ground constituted sabotage. However, if “national defense” means more than merely a “military establishment,” the statutory provisions were insufficient to place the Sisters or any other reasonable person on notice as to what the sabotage statute prohibited and was not sufficiently distinct from, among others, 18 U.S.C. § 1361 or a trespass statute.
    In arguing that offenses under § 2155 are mala in se, the government claims that, “[d]estroying government property and interfering with the national defense are inherently wrong, thus persons are charged with the knowledge that such actions are illegal.” (AAB at 36.) It is doubtful that most persons would equate entry upon a nuclear missile site and committing minimal damage to a fence, knowing one’s presence would not prevent the launch of the missiles, would constitute sufficient interference with the site to support a conviction of sabotage.
       The government also contends that the jury instructions were sufficient because “the statute imposes no limitation on the type of conduct that may be used to establish the intent [to interfere with the national defense]. Nor could there be such a limitation.” AAB at 17-18. In Gorin, however, the Supreme Court found that the espionage statute was not over-broad as applied because the jury instructions limited the type of conduct that was prohibited. For example, the Gorin jury instructions stated that,

[y]ou are instructed that the term “national defense” includes all matters directly and reasonably connected with the defense of our nation against its enemies ... these places or things must directly relate to the efficiency and effectiveness of the operation of said places or things as instruments for defending our nation. ... The connection must not be a strained or arbitrary one.

Gorin, 312 U.S. at 30-31 (emphasis added). In the Sisters’ case, there were no such delimiting words to limit the type of prohibited conduct. The Nuns rightly understood that 32 feet of perimeter fence was not an instrument for defending the United States and that they could not and did not injure or contaminate the MMIII N-8 when they placed blood on the silo cover or tracks. The sabotage statute was not intended to apply to this type of activity.

3. Conclusion

      No one could reasonably anticipate that the words “intent to injure, obstruct or interfere with the national defense” of the sabotage statute, 18 U.S.C. § 2155(a), could include the Sisters’ non-violent, symbolic acts. The Sisters in-no-way intended to interfere with national defense and in-no-way interfered with national defense. Rather, the Sisters’ intent – and, indeed, the practical result – was to bring the deadly reality of weapons of mass extermination on Colorado soil to the public’s attention in an effort to influence the United States government to correct these wrongs.
      The district court’s instructions in this case were so over-broad that they did not permit the Sisters to be placed on notice of the charges against them and turned the most innocuous activities of an individual into sabotage. This vague and over-broad application of § 2155(a) violated Sister Gilbert’s, Sister Platte’s and Sister Hudson’s Fifth and Sixth Amendment rights to due process of the law.

B. THE GOVERNMENT FAILED TO PROVE THE SISTERS KNEW THE ALMOST INEVITABLE RESULT OF THEIR ACTIONS WOULD BE INJURY TO THE NATIONAL DEFENSE; THEREFORE, THE CHARGE OF SABOTAGE UNDER § 2155 MUST BE DISMISSED.

1. The government must prove that the Sisters knew that injury to, interference with, or obstruction of the national defense would be the almost inevitable result of their actions.

      The government acknowledges that the jury was properly advised concerning the appropriate elements of the crime of sabotage under 18 U.S.C. § 2155. (AAB at 20.) As the court properly instructed the jury, conviction under § 2155 requires proof of the Sisters’ specific intent to actually “injure, interfere with, or obstruct” the national defense. (AAB at 20, citing Vol. 2, Doc. 126, Jury Instr. 17.) The court also properly instructed the jury that “acting with intent” meant “knowing that the result is practically certain to follow regardless of any desire, purpose or motive to achieve the result.” (AAB at 20, citing Vol. 2, Doc. 126, Jury Instr. 18.) To prove specific intent to commit sabotage, the government had to establish not only that injury to the national defense was highly foreseeable, but that the Sisters knew such injury to the national defense was almost certain and nonetheless went ahead. United States v. Johnson, 24 M.J. 101, 105-106 (1987).

2. Specific intent to commit sabotage cannot be merely “inferred” from the Sisters’ passionate beliefs or motives.

     The government concedes that the Sisters’ “desire, purpose or motive” to eliminate weapons of mass extinction was irrelevant to, and could not be used to establish the crucial element of, intent to commit sabotage under § 2155. (AAB at 22.) Despite this concession, however, the government incredibly argues that the requisite mens rea of sabotage can simply be “inferred from [the Sisters’] passionate opposition to the deployment of the minuteman missile.” (AAB at 20-21; emphasis added.) This argument not only contradicts the controlling legal principles acknowledged by the government, but demonstrates a dangerous inclination to convict citizens of sabotage solely for their passionate belief in, and desire for, sane weapons policies.
      As the Eighth Circuit emphasized in Kabat, the relevant inquiry in evaluating the requisite mens rea for sabotage is not the Sisters’ overriding motives or philosophy – the ultimate end sought – but rather the intended, immediate, practical results of their actions. United States v. Kabat, 797 F.2d at 587. Unrebutted evidence in the record indicates that the Sisters knew that their peaceful, symbolic actions could not possibly interfere with the national defense. (Tr. 781:16-25; 782:2 - Tr. 783:15; Tr. 852:13-15; Tr. 904:15-16.) Unlike the defendants in Kabat, the Sisters took no tools capable of disarming the missile and made no statements of intent to physically disarm the nuclear weapon at N–8. The Sisters did not bring any explosives, weapons or instruments of destruction. (Tr. 296:23-24; Tr. 299:11-14; Tr. 407:9-11; Tr. 453:19 - Tr. 454:1; Tr. 843:21-24.) Although the Sisters possessed deeply held beliefs concerning the sanctity of life and the illegal status of the U.S. nuclear arsenal, they denied that they intended to physically disarm these weapons or actually impede national defense. (Tr. 781:16-21; Tr. 782:2 - 783:15; Tr. 852:13-15; Tr. 904:15-16.)
     The Sisters’ expressions of belief that weapons of mass extinction should be disarmed by our government is not equivalent to an expression of intent to physically disarm them through their actions on October 6, 2002. See Kabat, 797 F.2d at 587. Because the record is devoid of any evidence of this crucial mens rea requirement, the Sisters’ conviction of sabotage under 18 U.S.C. § 2155 must be overturned.

3. Evidence of actual injury to, interference with or obstruction of the national defense is irrelevant to a determination of the existence of specific intent to commit sabotage.

     The government admits that evidence of actual injury to, interference with or obstruction of the national defense is “immaterial.” Inexplicably, the government then spends almost five pages arguing that the Sisters’ actions on October 6, 2002 actually interfered with “the operation of the missile site.” (AAB at 26-30.) The government implies that the Sisters’ damage to three panels of the fence surrounding the missile site, and the requirement that military personnel respond to their presence, somehow establishes the requisite mens rea for the crime of sabotage. However, the specific intent required for the crime of sabotage cannot simply be assumed from the Sisters’ actions. See United States v. Johnson, 24 M.J. at 105-106.
      As emphasized in the Sisters’ opening brief, and as the government appears to concede, the crucial element which elevates mere damage to national defense material, premises or utilities to the crime of sabotage is the specific intent to “injure, interfere with or obstruct” the national defense. United States v. Johnson, 15 M.J. 676, 678 (AFCMR 1983), citing, inter alia, United States v. Reyes, 30 CMR 776 (1960). Destruction of national defense material without the requisite intent is insufficient to support a conviction under 18 U.S.C. § 2155. United States v. Melville, 309 F.Supp. 774, 780 (S.D.N.Y. 1970).
      The Sisters knew that their books, blood and prayers would not, and could not, prevent the missile's deadly mission. (Tr. 763:11-13; Tr. 781:16 - Tr. 783:15.) Sister Ardeth Platte stated: “We know we can’t do that.” (Tr. 891:18-21.) She explained:

Because we know the Minuteman III, sixty feet long, is beneath the ground, under 110-ton cement silo lid, and that there are missileers in the unit, ones where they work, to turn keys together after they get the command form the President going through NORAD, going through the fifteen-minute launch. We know we cannot stop this from happening personally.
Tr. 891:24 - Tr. 892:4 (emphasis added).

Similarly, the Sisters did not intend to destroy the surrounding fence, but rather to symbolically open the area to public inspection. (Tr. 766:21 - Tr. 767:6.) Sister Carol Gilbert explained:

Because we wanted - we didn’t want to destroy the fence, first of all. I mean, it wasn’t a matter of destruction of the fence. It was to make the easiest way to open it up. To make it like a door, like a gate, so that the world could come in and see what was there, so that’s why we cut the big sections of the fence that way.

Tr. 767:8-13.

     Sister Gilbert testified that she had experience repairing similar chain link fences by purchasing and using the small links. (Tr. 767:15-20.) By carefully cutting the small fence links on the sides, she “assumed the fence could be brought upright and links put in it, very easily be brought back up ...” (Tr. 767:20-21.)
     The Sisters were careful to cause as little damage as possible while engaging in their symbolic acts, did not attempt to hide what they were doing, and were cooperative during their subsequent arrest. It never occurred to the Sisters that their peaceful and prayerful presence on the missile site could somehow injure, interfere with, or obstruct national defense. (Tr. 781:16 - Tr. 783:15.)
     The Eighth Circuit Court of Appeals in Kabat explained: “When the need is to protect the functioning of established military systems, it makes sense to attach the label and penalty of ‘sabotage’ to the conduct of any person who consciously interferes therewith ...” Kabat, 797 F.2d at 587 (emphasis added). The government presented absolutely no evidence that the Sisters knew that it was “practically certain” that their peaceful and prayerful actions on October 6, 2002 would somehow interfere with “the operation of the missile site,” and thus with the national defense. United States v. Johnson, 24 M.J. at 105-106; AAB at 27. Because the record is devoid of any evidence that the Sisters “consciously” injured, interfered with or obstructed the national defense, the Sisters’ conviction under 18 U.S.C. § 2155(a) must be overturned and the charges dismissed.

C. THE DISTRICT COURT ERRED IN DENYING THE SISTERS’ REQUEST FOR A GOOD FAITH JURY INSTRUCTION.

     Since the Sisters subjectively believed in good faith that their actions were legal and the evidence supported their belief, the jury should have been given a good faith instruction to determine if they had the specific intent necessary to commit sabotage.

1. The Sisters’ arguments and evidence at trial support a good faith instruction.

     The government claims that the Sisters’ evidence at trial did not support a good faith instruction. (AAB at 32-35.) The government correctly cites the three prong test set forth in United States v. Janus, 135 F.3d 1319, 1322 (10th Cir.1998) (citing United States v. Hopkins, 744 F.2d 716, 717 (10th Cir.1984)) for the appropriate test for application of the good faith jury instruction. As argued by the Sisters in their opening brief, the three prongs of the Janus test were satisfied by the evidence presented in this case. The good faith defense was permitted in Janus and Hopkins because of its ability to negate the state of mind necessary for the commission of the offense. Although both cases involved charges of intent to defraud, the government is in error in suggesting the good faith instruction is ordinarily confined to fraud and tax cases. (AAB at 32, 33.) In United States v. Overholt, 307 F.3d 1231 (10th Cir.2002), the defendant was charged with conspiracy to engage in various criminal acts including fraud and improper disposal of petroleum - impacted waste water. The district court gave a good faith instruction with respect to the allegations of fraud, but otherwise refused the request. It is clear from reviewing the opinion that the court was prepared to allow the defendant a good faith jury instruction had evidence established the defendant “personally believed” that unlawful injection of chemical waste into disposal wells was actually lawful: “Absent from [defendant’s] discussion is any evidence that he personally believed that the unlawful injection of chemical waste into the Oklahoma disposal was actually lawful. Thus, he failed to satisfy the final element of the Janus test and the district court was not required to give a mistake of law/good faith defense instruction.” Overholt, 307 F.3d at 1247.
      Applied here, since the Sisters personally believed their actions were lawful, it is unlikely they had the state of mind necessary for commission of the charge of sabotage. Count One of the Indictment required the jury to find, in pertinent part, that defendants “wilfully injured, destroyed, or contaminated national defense material or national defense premises” (or attempted to do the same), while acting “with intent to injure, interfere with, or obstruct the national defense of the United States.” (Vol. 2, Doc. 126, Instr. 17.) The fact that the Sisters believed in the lawfulness of their action could negate this second element of the sabotage charge. Had the district court given the good faith instruction, the jury may have concluded that the Sisters lacked the specific intent to commit sabotage.
       The record is replete with examples of the authoritative material the Sisters relied upon in forming their personal belief regarding the lawfulness of their actions. These included, among others, the testimony of Professors Vanda (Vol. 1 at 63-83) and Boyle (Vol. 1 at 84-143), presented during the motions hearing, as well as the numerous books and authoritative texts which the Sisters brought with them to the nuclear missile site or had previously read. (Vol. IV at 727, 733, 739, 741, 745, 747, 749, 839, 843, 876-77,883-84,885-86.) It is worth noting that the district court, though refusing to allow the jury to consider the testimony of Professors Vanda and Boyle, did allow the Sisters to refer to specific books and other written articles read by the Sisters, ostensibly because of the impact this material had on their state of mind. (Vol. IV at 730, 745, 759.)
       The government’s statement, “[n]o evidence at trial established that defendants believed that interfering with the national defense was lawful” (AAB at 34) is an incorrect assessment of the record. Since the Sisters knew these nuclear weapons could be launched at any time, they did not believe their actions constituted interference with the national defense. The record is devoid of any evidence to suggest the Sisters intended by their actions to render these weapons inoperable. In Kabat, 797 F.2d at 585, the defendant’s intent to interfere with or injure or disable the nuclear weapons was apparent: Carl Kabat testified that the N5 defendants “attempted to actually disarm in every way possible, everything that we could do that would render this weapon unusable was done to the best of our humble and whatever ability.” Not even the government here has argued that the Sisters by their actions attempted to render the missile inoperable. In Kabat, there was the confluence of sincerely held beliefs in opposition to nuclear weapons with the requisite act to render these weapons inoperable, thus supporting a sabotage conviction. Such was not the case here where the three Sisters went to the nuclear missile site of missile N-8 in order to unmask the horrors of nuclear weapons to the world and to symbolically disarm these weapons of mass destruction. (Vol. IV at 882.) Their good faith belief in the lawfulness of their actions coupled with their conduct, demonstrates the Sisters did not have the specific intent to commit the crime of sabotage.

2. The government’s second argument, that the Sisters’ good faith belief in the righteousness of their action is not a defense to prosecution under § 2155, has no relevance to the facts in this case.

     The Sisters never claimed that the good faith belief in the righteousness of their action was a defense to prosecution under § 2155. They have maintained that since they believed their actions were lawful, they could not have the requisite intent to commit the crime of sabotage.
     In this argument, the government is straying from the basic principle inherent in the good faith defense, the good faith defense’s ability to negate the state of mind necessary for commission of sabotage. The government’s reliance on Rankin is misplaced. United States v. Rankin, 616 F.2d 1168 (10th Cir.1980). The court in Rankin relied heavily on its decision in Armstrong v. United States, 306 F.2d 520 (10th Cir.1962) in which the defendants were charged with assaulting, resisting or impeding officers or employees in violation of 18 U.S.C. § 111. 18 U.S.C. § 111 is a general intent crime whereas 18 U.S.C. § 2155 is a specific intent crime. In Rankin, it is far more likely the defendants’ good faith belief in the propriety of their actions would have been a defense had they been charged with a specific intent crime.
      Similarly, the government’s reliance on United States v. Bailey, 327 F.3d 1131 (10th Cir.2003) is misplaced. First, it should be noted that the standard of review in Bailey was plain error since no objection was made to the referenced jury instruction. Bailey, 327 F.3d at 1143. Secondly, it should be pointed out that in Bailey a modified good faith instruction was tendered to the jury. Bailey, 327 F.3d at 443. “The ‘honest belief’ portion of the instruction to which Bailey now objects correctly informed the jury that, having committed fraud, an honest belief by Bailey that everything would work out does not establish a good faith defense.” Bailey, 327 F.3d at 443. Two things are clear from Bailey: First, a reasonable factual predicate for a good faith instruction did not exist. Secondly, that Bailey’s honest belief that “everything would work out” did not negate the mental state necessary for commission of the charges in that case. Here, it must be emphasized that the Sisters did not merely believe in the righteousness of their action; they believed in the lawfulness of their action and provided the court and jury with overwhelming evidence in support of their belief.
     The government incorrectly concludes that the good faith defense cannot negate the state of mind necessary for commission of the sabotage charge. This conclusion by the government begs the question why the district court, throughout trial, permitted the Sisters to refer to books or written material which they had read as being probative of their state of mind, though not permitting the entire book or article to be admitted into evidence. (Vol. IV at 730, 745, 759.) Certainly the reason the court permitted this material into evidence was because it could negate the specific intent necessary for the commission of sabotage.
      The government argues that interference with national defense, as the government wishes national defense defined, consists of any strongly held objection to nuclear weapons coupled with an act, no matter how slight. It appears to be the government’s view in cases such as this that the act will be magnified in direct proportion to the level of opposition, be it legal, moral or religious, that the actor has to use or threaten to use nuclear weapons. Applied here, a somewhat aggravated trespass and vandalism becomes sabotage since the Sisters’ opposition to nuclear weapons is so strongly held. This same type of distortion is seen again in the government’s brief when it attempts to compare the three Sisters, whose lives have been committed wholly to peace, to 9-11 terrorists. (AAB at 35.) Such distortion is intended solely to inflame this Court against the Sisters.

3. The government’s third argument is framed as: failure to understand the law is not a defense to a prosecution under § 2155.

     The government incorrectly argues that the Sisters’ alleged failure to understand the law is being offered as a defense to prosecution under § 2155. (AAB at 37-38.) Instead, it is the Sisters’ good faith belief in the lawfulness of their action that is directly relevant to the specific intent necessary to commit sabotage. As a result, a good faith instruction should have been tendered to the jury as it may have negated the intent necessary to commit sabotage.
      The government’s reliance on United States v. Overholt, 307 F.3d 1231 (10th Cir.2002) is again misplaced. The gist of the charges against the defendants in Overholt was that they unlawfully injected the wastewater into disposal wells and tried to cover up their crimes. It is difficult to imagine an offense more “mala in se” than destroying the environment for the sake of profit. Yet in Overholt the district court gave a good faith instruction with respect to the allegations of fraud, but otherwise refused the request only because the evidence did not show that the defendants personally believed the unlawful injection of chemical waste into the Oklahoma disposal wells was actually lawful. Overholt, 307 F.3d at 1247.
      These cases found a good faith instruction appropriate because of the complexity of understanding and applying tax and environmental law. Similar or greater complexity exists in understanding and applying the laws of war. Both the U.S. Supreme Court and the U.N. Charter recognize the need for experts in ascertaining and administering international law in general. The structure of the laws of war and how the particular rules and principles of humanitarian law are determined, incorporated into U.S. law, and applied to the threat or use of nuclear weapons, are highly technical matters. For these reasons, it was appropriate for the trial court to instruct the jury on the good faith defense as it relates to the interplay between § 2155 and the laws of war as that interplay may have bearing on the Sisters’ intent. See Paquette Habana, 175 U.S. 677 (1900); United Nations Charter, Statute of the International Court of Justice, Article 38.

4. The Sisters’ good faith defense was premised not only on their subjective but also their objective understanding of facts and law. The jury instructions viewed as a whole did not adequately state the facts and governing law as objectively understood by the Sisters.

     The government’s confusion as to accurate facts and applicable law is shown in its statement that the Sisters’ arguments at JOB 46-56 “appear to be articulating the basis for their belief that deployment of the Minuteman III missile was morally and legally unjustified, which beliefs are the foundation for defendants’ argument that they acted in ‘good faith.’” (AAB at 38.)
      First, this is not a question of mere “deployment.” The reality, according to public documents cited by the Sisters and reaffirmed at trial, was that the 335 kiloton Minuteman III, N-8 missile was, on October 6, 2002, on high-alert, fully prepared to unleash 20 times the uncontrollable heat, blast and radiation of the Hiroshima bomb within 15 minutes against named and targeted countries. The real and imminent threat, justified by the government as deterrence, was exacerbated by an additional doctrine of disproportional preemption declared in the Nuclear Posture Review (January, 2002) and the National Security Strategy (September 2002).
       Secondly, the foundation of the Sisters good faith defense was not only a subjective “belief that the Minuteman III missile was morally and legally unjustified.” (AAB at 38.) Rather, the Sisters knew and confirmed objectively that any threat or use of the Minuteman III, N-8 was legally unjustifiable. Because of the high-alert, known and intended threat to inflict indiscriminate and uncontrollable mass extermination, the Minuteman III, N-8 was fully prepared to commit absolutely prohibited war crimes (18 U.S.C. § 2441) and/or genocide (18 U.S.C. § 1091-1093) well outside constitutional war powers. The content and proper application of these specific laws of war upon which the Sisters’ relied for the legitimacy of their acts is fully described in the record and summarized at JOB 46-56.
      The Nuns understood, as now admitted by the Department of Justice in relation to torture, that it is overly broad to find that “the President enjoys complete discretion in the exercise of his Commander in Chief authority and in conducting operations against hostile forces.” (Aug 1, 2002 U.S. Department of Justice Office of Legal Counsel, Memorandum for Alberto R. Gonzales, Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. § 2340-2340A). That is in addition to prohibitions against torture, the prohibitions against war crimes and genocide are earlier and similar peremptory jus cogens crimes that strictly limit the President’s constitutional war powers in any circumstance.
      The prosecutor cannot bring charges of sabotage, certainly because the Minuteman III, N-8 was directly at issue and then claim that the Minuteman III, N-8 can be presumed legal without more. Because this case directly involved the Minuteman III, N-8, the alleged “instrument of national defense,” the specific laws of war were directly relevant. Whether or not there is or can be a presumption of legality of any threat or use of the U.S.’s Minuteman III, N-8, the Nuns were certainly entitled to a rebuttal of that presumption. Here, the Nuns’ basic due process rights were violated because they were never given a fair opportunity to rebut the government’s assertions in a meaningful manner. See Hamdi v Rumsfeld, 542 U.S. __, 124 S.Ct. 2633, 2648, 159 L.Ed.2d 578 (2004). No defense evidence of any kind was permitted and the court erred by instructing the jury that “the legality and lethality of the Minuteman III was not an issue” (Jury Instr. No. 25) and in prohibiting a good-faith defense.
      The third prong of the Sister’s good-faith, objective understanding of existing law that justified their acts was that citizens have a right, duty and privilege to stop threat or commission of war crimes or genocide through non-violent and symbolic means. The Sisters consciously followed well-established, non-violent methods for achieving obligatory nuclear disarmament as agreed in Article VI of the Nuclear Non-Proliferation Treaty, including open, non-violent declaration, inspection and identification (with red crosses in blood) of a weapon that must be disarmed.
      The government misunderstands the role of the rule of law in stopping war crimes or genocide with a nuclear weapon before they are completed. The government overzealously reiterates its belief that there is no legal solution to nuclear terror by turning the tables against the nuns saying, “[i]t is commonplace for enemies of the United States to accuse the nation of ‘war crimes’ and denounce the nation’s elected leaders as ‘criminals.’ Such beliefs are not only consistent with an intent to interfere with the national defense, they are often the justification for terrorist attacks upon the nation.” (AAB at 35.)
       Far from abandoning the rule of law, the Nuns specifically and consciously avoided any harm to anyone or any interference with the MMIII, N-8. They illustrated their clear knowledge that there is a non-violent, legal solution to the escalating threat of use of nuclear weapons, non-violent open declaration, inspection and disarmament, one weapon at a time.
       In sum, the Sisters knew that, as a matter of law, any threat or use of Minuteman III, N-8 was well outside constitutional war powers and that legal recourse before the commission of nuclear holocaust was well-established. The Sisters exercised their legal right, duty and privilege to step in non-violently and symbolically to point out these most heinous violations of the peremptory laws of war by the United States and to illustrate well-established successful, non-violent methods for achieving obligatory nuclear disarmament.

5. In its fifth argument, the government argues that the Sisters’ claim of good faith is blinded by their own actions and arguments.

      If the prosecution’s case and the defense case were proverbial “ships passing in the night” (AAB at 40), it is because the government chose to turn off its lights during this important encounter.
      The fact that the dictates of the Sisters’ consciences, also aligned with the Sisters’ understanding of the law, should not preclude the use of the good faith jury instruction. The government argues that interference with the national defense consists of a strongly held objection to nuclear weapons coupled with an act, no matter how slight. Applied here, an alleged trespass and vandalism became sabotage, apparently because the Sisters understood that any threat or use of the Minuteman III, N–8 exceeded constitutional war powers which the government wrongfully believes are unlimited by law.

II. CONCLUSION AND REQUESTED RELIEF

      Sisters Carol Gilbert, Jackie Hudson and Ardeth Platte formed a Citizens Weapons Inspection Team to speak the straightforward truth that they had found a grotesquely illegal, criminal weapon of mass extermination on high-alert. On solid moral and legal grounds, they knew that non-violent nuclear disarmament was essential and that citizens could take non-violent and symbolic steps toward that end.
      Before the Nuns acted, they had studied thoroughly. They presented to the court and prosecutors the uncontrollable horrors that the use of this nuclear weapon were known to inflict and how its high-alert status made the world’s collective future highly perilous. The Nuns had also studied thoroughly the intransgressible laws of war as applied to any threat or use of nuclear weapons, and presented the 1996 decisions of the International Court of Justice (ICJ) on this issue. They studied how these laws of war were directly incorporated into the U.S. criminal code and the how certain treaties were designed to implement them. They knew that the ICJ had concluded that there was a legal solution when it found, “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” (Legality of Threat or Use of Nuclear Weapons, ICJ, 8 July 1996, 105(2)F.) They took hope in this finding, its consistency with basic principles of morality and that the U.S.’s agreement to “unequivocal undertakings” to eliminate its nuclear arsenal at the 2000 Nuclear Non-Proliferation Treaty Review Conference. But after September 11, 2001, the Nuns observed how the United States flouted the laws of war and formal promises in increasingly dangerous ways. They decided to show how open, non-violent declaration and inspection could lead to obligatory non-violent nuclear disarmament one weapon at a time.
      That citizens might assume responsibility for a positive role in achieving non-violent nuclear disarmament may have been novel or even daring, but the legal and practical reasonableness of open declaration and inspections was a well established means of successfully achieving nuclear disarmament. In short, the Nuns objectively knew that any high-alert threat to use any nuclear weapon anywhere imposed terror of global magnitude. In good-faith, these Sisters understood that adherence to the laws of war required non-violent nuclear disarmament and provided a possible way out. The beauty of their simple, non-violent, symbolic, responsible acts to address and end this nation’s own wrongs gave citizens a lawful way beyond escalating war crimes and genocide. There is a certain irony in three Nuns elucidating positive rules of U.S. and international law and knowing that the rule of human, man-made law is not impotent or silent in the face of the most egregious violations of those binding, peremptory laws of war.
      The evidence on the record shows serious overreaching by the government. This Court must establish that the government cannot be permitted to impose retribution through prosecution; rather, this Court should ensure fairness and equity for those who, in a non-violent manner, attempt to seek resolution of conflicts of even the most serious kind. The over-zealousness of this prosecution and unfair trial and punishment cannot stand. It is not worthy of this great democracy in which certain specified legal limits to threat or use of force and due process of law are basic tenets.
      This Court should reverse Sisters Gilbert’s, Hudson’s and Platte’s sabotage convictions on Count 1 and dismiss this count for insufficiency of the evidence. If the Court does not so dismiss Count 1, this Court should reverse these convictions and remand the case to the trial court for a new trial with instructions to the district court to use an appropriate definition of “national defense” and to give a good faith defense jury instruction.
      DATED this 17th day of September, 2004.

Respectfully submitted

_________________________
Susan J. Tyburski, Esq.
Boyle & Tyburski
The Brock House
1800 Gaylord Street
Denver, Colorado 80206
Telephone: (303) 333-9800 x122
Facsimile: (303) 322-9546
Attorney for Defendant-Appellant Sister Carol Gilbert

______________________________
Scott T. Poland, Esq.
Poland & Wheeler
215 South Wadsworth Ave., Suite 500
Lakewood, Colorado 80226-1566
Telephone: (303) 969-8300
Facsimile: (303) 986-4857
Attorney for Defendant-Appellant Sister Ardeth Platte

______________________________
Clifford J. Barnard, Esq.
Attorney at Law
1790 30th St., Ste. 280
Boulder, Colorado 80301-1033
Telephone: (303) 449-2543
Facsimile: (303) 444-6349
Attorney for Defendant-Appellant Sister Jackie Marie Hudson

CERTIFICATE OF COMPLIANCE

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Clifford J. Barnard
Attorney for Appellant Hudson

CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of September, 2004, the above and foregoing Joint Reply Brief of Appellants was placed in the United States mail, first class postage prepaid, and addressed to:
A.U.S.A. Robert M. Russel, Esq.
Office of the United States Attorney
1225 17th Street, Suite 700
17th Street Plaza
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Anabel Dwyer, Esq.
1325 Lilac Ave.
East Lansing, Michigan 48823
_____________________________