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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14341
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLARE THERESE GRADY,
CARMEN TROTTA,
MARTHA HENNESSY,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 2:18-cr-00022-LGW-BWC-3
____________________
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2 Opinion of the Court 20-14341
Before BRANCH, GRANT, and ED CARNES, Circuit Judges.
BRANCH, Circuit Judge:
In the late-night hours of April 4, 2018, Clare Grady,
Martha Hennessy, Carmen Trotta, and several others associated
with the Plowshares movement 1 surreptitiously and illegally
entered the Naval Submarine Base Kings Bay in St. Marys,
Georgia. Once inside the Kings Bay naval base, the defendants
executed their plans to engage in religious protest of nuclear
weapons by engaging in what they refer to as “symbolic
disarmament.” These actions, however, were far more than
symbolic; in fact, they were incredibly destructive—spray painting
numerous anti-nuclear and religious messages on the sidewalk
and on monuments; pouring donated blood from the
movement’s members on the door of a building and the sidewalk;
hammering on a decommissioned missile display; placing crime
scene tape around the base; removing signage and part of a
monument; and cutting through wiring and fencing in order to
enter a highly secured area and display banners protesting nuclear
1 The Plowshares Movement is a “Roman Catholic protest and activism
group opposed to nuclear weapons.” The movement’s name comes from
the Bible verse, Isaiah 2:4, which provides: “He will judge between the
nations and will settle disputes for many peoples. They will beat their
swords into plowshares and their spears into pruning hooks. Nation will not
take up sword against nation, nor will they train for war anymore.”
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20-14341 Opinion of the Court 3
weapons. Base security ultimately apprehended the group
peacefully, and federal charges were brought against the involved
individuals. Grady, Hennessy, and Trotta proceeded to a jury
trial, and now appeal their respective convictions and sentences
for conspiracy, destruction of property on a naval installation,
depredation of government property, and trespass.
Jointly, the trio argue that (1) the district court erred in
denying their respective motions to dismiss the indictment under
the Religious Freedom and Restoration Act (“RFRA”), and (2) the
district court erred in holding them jointly and severally liable for
the full restitution amount.
Additionally, Hennessy and Trotta jointly argue that (3) the
district court abused its discretion when it denied their respective
requests for a guidelines reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1.
Turning to their individual arguments, Hennessy argues
that (4) the district court abused its discretion in increasing her
offense level under U.S.S.G. § 2B1.1(b)(1)(C) when it treated the
total damages amount as the loss amount. And Grady argues that
the district court erred in (5) not giving her requested mistake-of-
fact jury instruction, and (6) failing to consider or address RFRA at
sentencing. After careful consideration and with the benefit of
oral argument, we affirm.
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4 Opinion of the Court 20-14341
I. Background
Naval Submarine Base Kings Bay is home to the only
strategic weapons facility on the Eastern Seaboard and houses
numerous submarines and critical assets. The Kings Bay naval
base is large, covering approximately 17,000 acres with 26 miles of
perimeter fencing and employing approximately 10,500 people as
part of the staff or crew. The facility is highly secured, with only
three authorized points of entry, which are manned at all times by
armed guards. The base area behind the perimeter fencing is not
open to the general public. Anyone who attempts to gain access
to the base other than through the three main gates is trespassing,
and guards are authorized to exercise deadly force against
unauthorized entry or trespassers if necessary.
Other higher security areas within the perimeter fencing of
the Kings Bay naval base are protected by additional barriers. For
instance, an area referred to as the “Limited Area” is separated
from other areas of the base by double lines of fencing and
concertina wire. 2 Written warnings that deadly force may be
used against intruders are posted along the fencing and an oral
announcement to that effect is played over a loudspeaker
2 Concertina wire is “an entanglement of coiled usually barbed wire that can
be . . . use[d] as an obstacle.” Concertina wire, Webster’s Third New
International Dictionary Unabridged (2005), https://unabridged.merriam-
webster.com/unabridged/concertina%20wire (last visited November 22,
2021).
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20-14341 Opinion of the Court 5
approximately every eight to nine minutes. In addition to
numerous buildings and other assets inside the base, there is a
static missile display that showcases several decommissioned
ballistic missiles.
And outside the gates of the naval base is a static submarine
display known as the Bancroft Memorial. Several times a year,
different groups request and receive permission from the Kings
Bay naval base’s Public Affairs Office to demonstrate or protest at
the Bancroft Memorial. For instance, the group Pax Christi holds
a candlelight vigil twice a year in protest of the operations on the
base. And another group demonstrates around the anniversary of
the Hiroshima and Nagasaki bombings.
In this case, however, the defendants did not request or
receive permission to protest at the Bancroft Memorial site or
anywhere else. Instead, after approximately two years of secret
planning, under the cover of darkness on April 4, 2018, Grady,
Hennessy, Trotta, and four other members of the Plowshares
Movement equipped with spray paint, bolt cutters, hammers,
blood, banners, crime scene tape, Go-Pro cameras, and other
tools cut a padlock on the perimeter fencing of the Kings Bay
naval base, opened a gate, and illegally entered the base. The
group intended to engage in symbolic disarmament as part of
their faith, which they profess requires them to “practice peaceful
activism and prevent nuclear war.” Once inside the Kings Bay
naval base, the seven individuals split into groups and proceeded
to different areas of the base, including the administration
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6 Opinion of the Court 20-14341
building, the static missile display, and the nuclear weapons
storage bunkers.
Grady and Hennessy went to the administration building
where they spray-painted numerous anti-nuclear and religious
messages on the sidewalk. They poured bottles of human blood
on the door of the building and sidewalk, and placed crime scene
tape around the building. They also taped an “indictment” 3 of the
3
The indictment stated as follows:
KINGS BAY PLOWSHARES (PLAINTIFF),
VS.
UNITED STATES OF AMERICA (DEFENDANT),
INDICTMENT
Today, through our nonviolent action, we, Kings Bay
Plowshares—indict the United States government, President
Donald Trump, Kings Bay Base Commander Brian Lepine,
the nuclear triad, and specifically the Trident nuclear
program.
WHEREAS, This program is an ongoing criminal
endeavor in violation of international treaty law binding on
the United States under the supremacy clause of the U.S.
Constitution (Article VI, Section 2): This Constitution, and
the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be
made, under the authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.
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20-14341 Opinion of the Court 7
WHEREAS, The United States is bound by the
United Nation’s Charter, ratified and signed in 1945. Its
preamble affirms that its purpose is to “save future
generations from the scourge of war.” It directs that “all
nations shall refrain from the use of force against another
nation.” Article II regards the threat to use nuclear weapons
as ongoing international criminal activity.
WHEREAS, The Nuremberg Principles, also
promulgated in 1945, primarily by the U.S., prohibit crimes
against peace, crimes against humanity, war crimes and
genocide. They render nuclear weapons systems prohibited,
illegal, and criminal under all circumstances and for any
reason.
WHEREAS, The U.S. government is obligated as well
by the Non-Proliferation Treaty, in force since 1970 that
requires the signers to pursue negotiations in good faith and
to eliminate nuclear weapons at an early date. The U.S.
government is also obligated by the Comprehensive Test Ban
Treaty, which prohibits full-scale nuclear explosions.
WHEREAS, the members of the United Nations are
currently negotiating a treaty to prohibit nuclear weapons,
leading towards their total elimination.
THEREFORE, the work being . . . done at Kings Bay
Naval Submarine Base violates all these agreements and is
thus criminal.
...
Against these continuing violations of treaty law, we
assert our right and duty to civil resistance against nuclear
weapons. Furthermore, we affirm as crucial the human right
to be free from these crimes. The Nuremberg Principles not
only prohibit such crimes but oblige those of us aware of the
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8 Opinion of the Court 20-14341
government to the door and left the book Doomsday Machine,
Confessions of a Nuclear War Planner by Daniel Ellsberg at the
building. Grady and Hennessy then joined the others at the static
missile display, where they hammered on the display, hung more
crime scene tape, and spray-painted messages on the base of the
display. Other group members removed signage and part of a
monument, poured more human blood, and spray-painted other
monuments. 4
crime to act against it. “Complicity in the commission of a
crime against peace, a war crime, or a crime against
humanity . . . is a crime under International law”. The
United Nations Charter further reinforced this principle and
made it part of the binding international law. Similarly, the
Convention on the Prevention and Punishment of the Crime
of Genocide, to which the United States is a signatory, makes
it clear that private individuals can be held responsible for
acts of genocide.
The ongoing building and maintenance of Trident
submarines and ballistic missile systems constitute war
crimes that can and should be investigated and prosecuted by
judicial authorities at all levels. As citizens, we are required
by International Law to denounce and resist known crimes.
For the sake of the whole human family threatened
by nuclear weapons, and for the sake of our Planet Earth,
which is abused and violated, we indict the Kings Bay Naval
Submarine Base and all government officials, agencies, and
contractors as responsible for perpetuating these war crimes.
4 The fact that Grady, Hennessy, and Trotta did not personally engage in
these additional acts is not relevant because they are each “liable for any act
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20-14341 Opinion of the Court 9
Meanwhile, Trotta proceeded with other individuals to the
highly secured “Limited Area” where they cut through fencing
and concertina wire and entered the area. There they displayed
banners protesting the morality of nuclear weapons and prayed.
After several hours, all seven individuals were apprehended
peacefully by security. They all were subsequently indicted on
charges of: (1) conspiracy, in violation of 18 U.S.C. §§ 371 and 2; 5
(2) destruction of property on a naval installation, in violation of
18 U.S.C. §§ 1363 and 2; 6 (3) depredation of government property,
in violation of 18 U.S.C. §§ 1361 and 2; 7 and (4) trespass, in
done by a co-conspirator in furtherance of the conspiracy.” See United States
v. Loyd, 743 F.2d 1555, 1561 (11th Cir. 1984).
5
“If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States, or any agency thereof in any
manner or for any purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined under this title or
imprisoned not more than five years, or both.” 18 U.S.C. § 371.
6
“Whoever, within the special maritime and territorial jurisdiction of the
United States, willfully and maliciously destroys or injures any structure,
conveyance, or other real or personal property, or attempts or conspires to
do such an act, shall be fined under this title or imprisoned not more than
five years, or both, and if the building be a dwelling, or the life of any person
be placed in jeopardy, shall be fined under this title or imprisoned not more
than twenty years, or both.” 18 U.S.C. § 1363.
7 Section 1361 provides:
Whoever willfully injures or commits any depredation against any property
of the United States, or of any department or agency thereof, or any property
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10 Opinion of the Court 20-14341
violation of 18 U.S.C. § 1382. 8
As relevant to this appeal, Grady, Hennessy, and Trotta
each filed virtually identical motions to dismiss the indictment,
arguing that their prosecution violated RFRA. Specifically, they
asserted that their actions at the Kings Bay naval base were “in
accordance with their deeply held religious beliefs that nuclear
weapons are immoral and illegal,” and the government’s
prosecution of them substantially burdened their religious
exercise in violation of RFRA. They maintained that, under
RFRA, the government could not show that the decision to
charge the defendants was the least-restrictive means of
furthering its compelling interests in the safety and security of the
base. Grady, Hennessy, and Trotta proposed the following less
which has been or is being manufactured or constructed for the United
States, or any department or agency thereof, or attempts to commit any of
the foregoing offenses, shall be punished as follows:
If the damage or attempted damage to such property exceeds the sum of
$1,000, by a fine under this title or imprisonment for not more than ten
years, or both; if the damage or attempted damage to such property does not
exceed the sum of $1,000, by a fine under this title or by imprisonment for
not more than one year, or both.
18 U.S.C. § 1361.
8
“Whoever, within the jurisdiction of the United States, goes upon any
military, naval, . . . post, fort, arsenal, yard, station, or installation, for any
purpose prohibited by law or lawful regulation . . . Shall be fined under this
title or imprisoned not more than six months, or both.” 18 U.S.C. § 1382.
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20-14341 Opinion of the Court 11
restrictive alternatives of achieving the government’s compelling
interest: (1) reducing the number and severity of the charges;
(2) not prosecuting and offering instead civil injunctions, civil
damages, community service, “ban and bar” letters, or pre-trial
diversion; and (3) giving the defendants permission to practice
symbolic disarmament in a designated area on the base. Thus,
they argued that the indictment must be dismissed. The
government opposed the motions.
Following a two-day evidentiary hearing, the district court
denied their motions to dismiss. The district court held that
Grady, Hennessy, and Trotta had established a prima facie case
under RFRA because they had shown that their actions at the
Kings Bay naval base were a sincere religious exercise and that the
laws in question substantially burdened their religious exercise.
The district court then explained that the government met its
burden of demonstrating that it had a compelling interest in the
(1) safety, (2) security, and (3) smooth operation of the naval base,
naval base personnel, and naval base assets. Finally, the district
court explained that the government met its burden of
establishing that the application of the laws in question to each of
the defendants was “the least restrictive means of furthering any
one of th[o]se compelling government interests.”
Grady, Hennessy, and Trotta proceeded to a jury trial and
were convicted of all charges.
For sentencing purposes, the statutory maximum for the
conspiracy offense was five years’ imprisonment. See 18 U.S.C.
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12 Opinion of the Court 20-14341
§ 371. The statutory maximum for destruction of property on a
naval installation was five years’ imprisonment. See 18 U.S.C.
§ 1363. The statutory maximum for depredation of government
property was 10 years’ imprisonment. See 18 U.S.C. § 1361.
Finally, the statutory maximum for trespass was six months’
imprisonment. See 18 U.S.C. § 1382. The district court sentenced
Grady to a below-guidelines sentence of 12 months and one day
imprisonment to be followed by three years of supervised
release. 9 Hennessy received a below-guidelines sentence of 10
months’ imprisonment to be followed by three years of
supervised release. 10 And Trotta received a below-guidelines
sentence of 14 months’ imprisonment to be followed by three
years of supervised release. 11 The district court also imposed
restitution in the amount of $33,503.51, for which each defendant
was jointly and severally liable.
This appeal followed.
II. Discussion
9
Grady’s advisory guidelines range was 21 to 27 months’ imprisonment.
10
Hennessy’s advisory guidelines range was 15 to 21 months’ imprisonment.
11
Trotta’s advisory guidelines range was 21 to 27 months’ imprisonment.
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20-14341 Opinion of the Court 13
A. Whether the district court erred in denying the defendants’
motions to dismiss the indictment under RFRA
Grady, Hennessy, and Trotta argue that the district court
erred in denying their respective motions to dismiss the
indictment under RFRA. They maintain that the government
failed to meet its burden to prove that criminal prosecution was
the least-restrictive means of achieving the government’s
compelling interests, particularly in light of the defendants’
proposed alternative of permitting symbolic disarmament on a
designated area of the base.
“Generally, we review the district court’s denial of a
motion to dismiss an indictment for abuse of discretion.” United
States v. Farias, 836 F.3d 1315, 1323 (11th Cir. 2016). However,
whether government action “comports with RFRA is a pure
question of law,” which is subject to de novo review. Lawson v.
Singletary, 85 F.3d 502, 511–12 (11th Cir. 1996).
RFRA provides the following protection against substantial
burdens on a person’s religious exercise by the government:
(a) In general
Government shall not substantially burden a
person’s exercise of religion even if the burden
results from a rule of general applicability, except as
provided in subsection (b).
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14 Opinion of the Court 20-14341
(b) Exception
Government may substantially burden a person’s
exercise of religion only if it demonstrates that
application of the burden to the person—
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of furthering
that compelling government interest.
(c) Judicial relief
A person whose religious exercise has been
burdened in violation of this section may assert that
violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against a
government.
42 U.S.C. § 2000bb-1. “The term ‘religious exercise’ includes any
exercise of religion, whether or not compelled by, or central to, a
system of religious belief.” Id. §§ 2000bb-2(4), 2000cc-5(7)(A).
Further, “the ‘exercise of religion’ under RFRA must be given the
same broad meaning that applies under [the Religious Land Use
and Institutionalized Persons Act].” Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 696 n.5 (2014).
Thus, to establish a prima facie RFRA claim, a defendant
must first show (1) that he or she was exercising (or was seeking
to exercise) his or her sincerely held religious belief, and (2) that
the government substantially burdened the defendant’s religious
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20-14341 Opinion of the Court 15
exercise. Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir. 2015).
The burden then shifts to the government to demonstrate that
(3) it has a compelling interest, and (4) the challenged action in
question is the least-restrictive means of furthering that interest.
Id. at 1205, 1207.
RFRA may be raised as a defense to criminal prosecution.
See 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise
has been burdened in violation of this section may assert that
violation as a claim or defense in a judicial proceeding and obtain
appropriate relief against a government.”); see also United States
v. Christie, 825 F.3d 1048, 1055 (9th Cir. 2016) (explaining that
RFRA may be invoked as a defense to a criminal prosecution);
United States v. Wilgus, 638 F.3d 1274, 1279 (10th Cir. 2011)
(same).
In this case, the parties agree that the defendants were
exercising sincerely held religious beliefs, the government
substantially burdened the defendants’ religious exercise, and the
government has a compelling interest. Accordingly, the fourth
prong in the RFRA analysis is the only prong in dispute in this
appeal—whether the government met its burden of
demonstrating that criminal prosecution of the defendants was
the least-restrictive means of furthering its significant compelling
interests in the safety and security of the naval base, naval base
personnel, and naval base assets. Grady, Hennessy, and Trotta
maintain that their proposed alternative of permitting their
religious exercise of “symbolic disarmament” in a designated area
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16 Opinion of the Court 20-14341
is the least-restrictive means, and, therefore under RFRA, the
indictment should have been dismissed.
We thus turn to the scope of the government’s burden.
The least-restrictive-means standard is exceptionally
demanding, and it requires the government to show
that it lacks other means of achieving its desired goal
without imposing a substantial burden on the
exercise of religion by the objecting party. If a less
restrictive means is available for the Government to
achieve its goals, the Government must use it.
Holt v. Hobbs, 574 U.S. 352, 364–65 (2015) (alterations adopted)
(quotations and internal citations omitted). In meeting its
burden, the government must refute the alternative schemes
proposed by the petitioners. Smith v. Owens, 13 F.4th 1319, 1326
(11th Cir. 2021); see also Wilgus, 638 F.3d at 1289 (explaining that,
to meet its burden, the government “must refute the alternative
schemes offered by the challenger”); see also Christie, 825 F.3d at
1061 (“At a minimum, the government must address those
alternatives of which it has become aware during the course of
this litigation,” and “must show that each proposed alternative
either is not ‘less restrictive’ within the meaning of RFRA, or is
not plausibly capable of allowing the government to achieve all of
its compelling interests.”). 12
12
To the extent that Grady argues that the government was required to
proffer less restrictive alternatives and failed to do so, she is wrong. The
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20-14341 Opinion of the Court 17
Pointing to permitted protests of other groups at the naval
base, the defendants proposed that a less restrictive alternative
would be for the naval base to make arrangements for them to
practice symbolic disarmament in a designated area (an option
that they did not pursue prior to entering the naval base). In
offering this alternative, the defendants attempt to recast their
religious exercise as merely requiring them to be on base property
such that their religious exercise could be accommodated by the
Kings Bay naval base in the same way that candlelight vigils and
other religious exercises are accommodated for other groups.
Their argument for this alternative is misplaced. In
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 439 (2006), the Supreme Court explained that, in
enacting RFRA, “Congress has determined that courts should
strike sensible balances, pursuant to a compelling interest test that
requires the Government to address the particular [religious]
practice at issue.” See also Holt, 574 U.S. at 361–62 (explaining
that “RLUIPA’s ‘substantial burden inquiry’ asks whether the
government has substantially burdened” the particular religious
exercise in question, “not whether the RLUIPA claimant is able to
government does not bear the burden of proffering less restrictive
alternatives or demonstrating that it actually considered and rejected those
alternatives. See Smith, 13 F.4th at 1326; Knight v. Thompson, 797 F.3d 934,
946–47 (11th Cir. 2015).
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18 Opinion of the Court 20-14341
engage in other forms of religious exercise”). Here, because the
defendants were seeking relief from prosecution for past religious
practice, “the particular practice at issue” for purposes of the
RFRA analysis is necessarily the religious practices engaged in by
the defendants on April 4, 2018. In other words, the district court
had to determine whether an exemption under RFRA could be
granted for the particular religious exercises engaged in on April
4, 2018. See id. Thus, neither the district court nor this Court
could consider whether lesser restrictive alternatives were
available for the Plowshares group to protest in a different
manner than the destructive manner in which they did in the late
night hours of April 4, 2018.
Instead, in order to be a viable least-restrictive means for
purposes of RFRA, the proposed alternative needed to
accommodate both the religious exercise practiced in this case—
unauthorized entry onto the naval base and destructive actions,
including spray painting monuments, doors, and sidewalks,
pouring human blood on doors and other areas, hammering on a
static missile display, hanging banners and crime scene tape, as
well as removing and partially destroying signage and
monuments around the naval base—and simultaneously achieve
the government’s compelling interests in the safety and security
of the naval base, naval base assets, personnel, and critical
operations. Christie, 825 F.3d at 1061.
The defendants, however, failed to proffer a least-
restrictive means that would simultaneously accommodate their
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20-14341 Opinion of the Court 19
religious exercise while protecting the government’s compelling
interests. Permitting the defendants to practice symbolic yet
destructive disarmament in a designated area would not be an
effective means of achieving the government’s interest in the
safety and security of the naval base’s assets. Their “symbolic”
disarmament would still damage naval base property and assets.
Because this alternative does not achieve all the government’s
compelling interests, it is not a viable least-restrictive means. See
Knight, 797 F.3d at 945 (holding that plaintiffs’ RLUIPA claim
failed because the plaintiffs’ proposed alternatives to the prison’s
short-hair policy for male inmates—including allowing an
exemption for certain inmates, requiring inmates to search their
own hair, and using a computer program to alter inmate
photographs—did not eliminate the stated security, discipline,
hygiene, and safety concerns).
Simply put, RFRA is not a “get out of jail free card,”
shielding from criminal liability individuals who break into secure
naval installations and destroy government property, regardless of
the sincerity of their religious beliefs. Just as “no Supreme Court
case supports the destruction of government, or another’s,
property on free exercise grounds,” United States v. Allen, 760
F.2d 447, 452 (2d Cir. 1985), nothing in RFRA supports
destructive, national-security-compromising conduct as a means
of religious exercise.
The defendants’ comparison of their case to that of
Wisconsin v. Yoder, 406 U.S. 205 (1972), and United States v.
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20 Opinion of the Court 20-14341
Hoffman, 436 F. Supp. 3d 1272 (D. Ariz. 2020), is unpersuasive. In
Yoder, a First Amendment Free Exercise Clause case, the
Supreme Court affirmed the Wisconsin Supreme Court’s decision
overturning Amish parents’ convictions for violating the state’s
compulsory school attendance law based on the Free Exercise
Clause. 406 U.S. at 207. The Court explained that schooling
beyond the eighth grade was contrary to the Amish faith, and the
state’s facially neutral compulsory attendance law “severe[ly]”
burdened the practice of the Amish religion—it compelled the
Amish, “under threat of criminal sanction, to perform acts
undeniably at odds with fundamental tenets of their religious
beliefs.” Id. at 210–11, 218, 220–21. The Court held that the State
failed to meet its burden of showing how its interest in educating
citizens so that they could participate effectively and intelligently
in society would be adversely affected by granting an exemption
to the Amish—particularly considering the Amish’s alternative
mode of informal vocational education beyond the eighth grade.
Id. at 222–229, 235–36. In other words, the State failed to show
that its asserted compelling interest could not be achieved with an
exception to the compulsory education law for the Amish.
And in Hoffman, members of “No More Deaths,” a faith-
based humanitarian aid organization associated with the
Unitarian Universalist Church, entered a wildlife refuge without a
permit, drove on a restricted-access road, and left food, water, and
other supplies along foot trails frequently used by persons
entering the United States unlawfully, in an effort to prevent
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20-14341 Opinion of the Court 21
deaths from dehydration and exposure. 436 F. Supp. at 1276–77.
As a result of their actions, the members of the group were
criminally charged with entering the wildlife refuge without a
permit, abandoning property, and driving in a wilderness area, in
violation of several regulations. Id. at 1278. They raised a RFRA
defense at a bench trial before a magistrate judge but were
convicted as charged. Id. On appeal, the district court reversed
their convictions based on RFRA. Id. at 1283–89. Specifically, the
district court found that the government failed to demonstrate
that prosecution was the least-restrictive means of achieving its
environmental interests in the refuge because it did not show why
allowing the defendants’ practice so long as they picked up any
trash would not achieve the government’s interest. Id. at 1289.
Unlike the situations presented in Yoder and Hoffman,
however, as explained previously, it would be impossible to
achieve all of the government’s compelling interests in the safety
and security of the Kings Bay naval base, its base personnel, and
its base assets and also accommodate the defendants’ destructive
religious exercise in this case. The need for the uniform
application of laws prohibiting unauthorized entry on naval base
property, as well as the depredation and destruction of naval base
assets, are the least-restrictive means of achieving the
government’s compelling interest in national security—an
interest of the highest order—and precludes the recognition of the
proposed exceptions to these criminal laws, even under RFRA.
See, e.g., O Centro, 546 U.S. at 436 (“We do not doubt that there
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22 Opinion of the Court 20-14341
may be instances in which a need for uniformity precludes the
recognition of exceptions to generally applicable laws under
RFRA.”); Cutter v. Wilkinson, 544 U.S. 709, 721 (2005) (“We do
not read RLUIPA to elevate accommodation of religious
observances over an institution’s need to maintain order and
safety. Our decisions indicate that an accommodation must be
measured so that it does not override other significant interests.”);
United States v. Lee, 455 U.S. 252, 260 (1982) (holding, in a pre-
RFRA context, that “[b]ecause the broad public interest in
maintaining a sound tax system is of such a high order, religious
belief in conflict with the payment of taxes affords no basis for
resisting the tax”); Braunfeld v. Brown, 366 U.S. 599, 603 (1961)
(“[T]he freedom to act, even when the action is in accord with
one’s religious convictions, is not totally free from legislative
restrictions.”). Accordingly, the district court did not err in
denying the defendants’ motions to dismiss the indictment.
B. Whether the district court erred when it held the
defendants jointly and severally liable for the full amount of
restitution
Grady, Hennessy, and Trotta argue that the district court
erred in holding them jointly and severally liable for the full
amount of the ordered restitution—$33,503.51. 13 They maintain
13
The government contends that only Hennessy and Trotta make this
argument, but this contention ignores Grady’s statement of adoption in her
brief.
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20-14341 Opinion of the Court 23
that the district court should have made findings as to the damage
caused by their respective individual actions and held them each
personally liable for only that amount. We disagree.
“We review de novo the legality of an order of restitution,
but review for abuse of discretion the determination of the
restitution value of lost or destroyed property. We review for
clear error factual findings underlying a restitution order.” United
States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007)
(quotation and internal citations omitted); cf. United States v.
Alas, 196 F.3d 1250, 1251 (11th Cir. 1999) (reviewing imposition of
joint and several liability for restitution for an abuse of discretion).
The Mandatory Victims Restitution Act provides that the
district court “shall order” restitution for certain offenses,
including “an offense against property under [Title 18],” like the
offenses in this case. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A).
Section 3664 sets forth the procedures for ordering restitution and
provides that the district court “shall order restitution to each
victim in the full amount of each victim’s losses as determined by
the court.” Id. § 3664(f)(1)(A). Moreover,
[i]f the court finds that more than 1 defendant has
contributed to the loss of a victim, the court may
make each defendant liable for payment of the full
amount of restitution or may apportion liability
among the defendants to reflect the level of
contribution to the victim’s loss and economic
circumstances of each defendant.
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24 Opinion of the Court 20-14341
Id. § 3664(h) (emphasis added). Accordingly, “a district court does
not exceed its authority by ordering a defendant to pay restitution
for losses which result from acts done in furtherance of the
conspiracy of which the defendant is convicted.” United States v.
Obasohan, 73 F.3d 309, 311 (11th Cir. 1996); see also United States
v. Davis, 117 F.3d 459, 462–63 (11th Cir. 1997) (concluding that
the district court did not err in holding the defendants jointly and
severally liable for the full amount of the losses because the
defendants had substantial involvement in the fraud scheme that
caused the losses and “a defendant is liable for reasonably
foreseeable acts of others committed in furtherance of the
conspiracy for which the defendant has been convicted”).
Here, the losses in question resulted from acts which were
part of the conspiracy of which Grady, Hennessy, and Trotta
were convicted. Therefore, the district court had the authority to
hold them jointly and severally liable for the full amount of
restitution. 18 U.S.C. § 3664(h); Obasohan, 73 F.3d at 311.
Accordingly, the district court did not abuse its discretion or
otherwise err in holding the defendants jointly and severally liable
for the full amount of the restitution.
C. Whether the district court erred in denying a reduction for
acceptance of responsibility for Hennessy and Trotta
Hennessy and Trotta argue that the district court abused its
discretion when it denied their respective requests for acceptance-
of-responsibility reductions under U.S.S.G. § 3E1.1. They
maintain that they never denied engaging in the conduct in
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20-14341 Opinion of the Court 25
question and went to trial only because of their RFRA defense.
Thus, they argue that, under these circumstances, they are each
entitled to a reduction for acceptance of responsibility.
“We review the district court’s determination of
acceptance of responsibility only for clear error. [The]
determination that a defendant is not entitled to acceptance of
responsibility will not be set aside unless the facts in the record
clearly establish that a defendant has accepted personal
responsibility.” United States v. Amedeo, 370 F.3d 1305, 1320–21
(11th Cir. 2004) (quotation and internal citation omitted); see also
United States v. Andres, 960 F.3d 1310, 1318 (11th Cir. 2020)
(same).
U.S.S.G. § 3E1.1(a) instructs the district court to decrease a
defendant’s base offense level by two if he “clearly demonstrates
acceptance of responsibility for his offense.” The commentary to
the Guidelines indicates that this reduction “is not intended to
apply to a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.”
U.S.S.G. § 3E1.1(a), cmt. (n.2). “[T]he reduction is intended to
reward defendants who express contrition for their wrongdoing
and evidence a desire to reform their conduct.” Andres, 960 F.3d
at 1318 (quotation omitted).
Nevertheless, the commentary notes that a “[c]onviction
by trial . . . does not automatically preclude a defendant from
consideration for such a reduction,” although such instances in
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26 Opinion of the Court 20-14341
which the reduction would still be appropriate will be “rare.”
U.S.S.G. § 3E1.1(a), cmt. (n.2). For instance, a defendant may still
be eligible for the reduction “where [he] goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to make a
constitutional challenge to a statute or a challenge to the
applicability of a statute to his conduct). Under those
circumstances, however, a determination that a defendant has
accepted responsibility will be based primarily upon pre-trial
statements and conduct.” Id. Because “[t]he sentencing judge is
in a unique position to evaluate a defendant’s acceptance of
responsibility . . . the determination of the sentencing judge is
entitled to great deference on review.” United States v. Williams,
408 F.3d 745, 757 (11th Cir. 2005) (quoting U.S.S.G. § 3E1.1, cmt.
(n.5)).
In denying the reduction for Hennessy and Trotta, the
district court found that neither defendant had clearly
demonstrated acceptance of responsibility because they continued
to deny the illegality of their actions and put the government to
its burden of proof. This finding was not clearly erroneous and is
supported by the record.
Prior to trial, the defendants filed notices of intent to
present a RFRA defense at trial to which the government
objected. The district court sustained the government’s objection
and held that it had already addressed the RFRA issue in denying
the defendants’ motions to dismiss the indictment, and the
defendants could not relitigate it before the jury. At trial, while
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20-14341 Opinion of the Court 27
the defendants did not deny that they engaged in the conduct in
question, they denied that their actions constituted crimes, and
their statements throughout the district court proceedings
demonstrated a willingness to continue to engage in such
conduct.14 In other words, after their effort to challenge the
applicability of the criminal statutes to their conduct proved
unsuccessful, the defendants then proceeded to a multi-day jury
trial and put the government to its burden of proof. The
defendants cannot argue that they proceeded to a jury trial in
order to continue to challenge the applicability of the criminal
statutes to their allegedly religious conduct, because they were
not permitted to raise a RFRA defense at trial. While each
14
For instance, at the hearing on the motion to dismiss the indictment,
Trotta testified that the group would not have hesitated to destroy nuclear-
related hardware and was “disappointed” that they did not encounter a
submarine while on the base, and that if they had, they would not have
hesitated to engage in further symbolic disarmament and “transform it.”
Later, at his sentencing, Trotta asserted that all of his criminal history is for
acts in opposition to “American war crime[s]” and indicated that “what our
country needs desperately is for a great deal more resistance to its ongoing
foreign policy which is a threat to the globe and not merely through nuclear
weapons, but even through simply the ongoing wars.” Similarly, following
the jury’s guilty verdict, Hennessy made a statement to the media outside
the courthouse implying that she was willing to continue to engage in this
type of conduct again stating, “[t]he efficiency of the state can never be
underestimated; yet, we proceed in humility. The weapons are still there.
The treaties are being knocked down one after the next. But we are called to
keep trying, and we will do this together. We have no other choice.”
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28 Opinion of the Court 20-14341
defendant has a constitutional right to a jury trial, under the
circumstances in this case, the exercise of that right was
inconsistent with the reduction for acceptance of responsibility.
Andres, 960 F.3d at 1318. Accordingly, this is not one of those
“rare” instances in which the record clearly establishes that the
defendant accepted responsibility and should receive a reduction
despite putting the government to its burden of proof at trial.
Moreover, we note that, at sentencing, the district court
stated that, “regardless of how the guidelines objections had come
out,” it would have imposed the same sentence for both
Hennessy and Trotta. Accordingly, any alleged error in failing to
award Hennessy and Trotta reductions for acceptance of
responsibility was harmless. See United States v. Keene, 470 F.3d
1347, 1348–49 (11th Cir. 2006) (holding that a guidelines error is
harmless if the district court unambiguously expressed that it
would have imposed the same sentence, regardless of the
guidelines calculation).
D. Whether the district court erred when it used the total
damages amount to enhance Hennessy’s base offense level under
U.S.S.G. § 2B1.1(b)(1)(C)
Hennessy argues that the district court abused its discretion
when it used the total loss amount of $33,503.31 to increase her
base offense level under U.S.S.G. § 2B1.1(b)(1)(C). She maintains
that the government failed to present any evidence of the loss
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20-14341 Opinion of the Court 29
amount at sentencing, and because it was her first Plowshares
action, 15 the record does not support the conclusion that the acts
of her codefendants were reasonably foreseeable to her.
Therefore, she argues that only the loss caused by her specific
actions should have been attributed to her.
The district court’s interpretation of the Guidelines and the
application of the Guidelines to the facts are reviewed de novo.
United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004).
When the government seeks to apply an enhancement under the
Sentencing Guidelines over the defendant’s factual objection, the
government has the burden of introducing sufficient and reliable
evidence to prove the necessary facts by a preponderance of the
evidence. United States v. Washington, 714 F.3d 1358, 1361 (11th
Cir. 2013). “The district court is permitted to base its loss
determination on factual findings derived from, among other
things, evidence heard during trial, undisputed statements in the
15
Although the events at the Kings Bay naval base may have been
Hennessy’s first Plowshares-related action, like her codefendants, Hennessy
was no stranger to protests and similar demonstrations. Hennessy, who is in
her 60s, described herself at the evidentiary hearing as a nonviolent
“anarchist[],” and admitted that she had been arrested (but never convicted)
numerous times dating back to 1979 for her protest-related activities in
opposition to nuclear power plants and Guantanamo Bay. When asked to
estimate how many times she had been arrested, she stated “not enough
times”—although we note that according to her PSI, she was arrested 16
times between 2008 and 2018 alone.
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30 Opinion of the Court 20-14341
[presentence investigation report (‘PSI’)], or evidence presented
during the sentencing hearing.” United States v. Bradley, 644 F.3d
1213, 1290 (11th Cir. 2011) (quotation omitted).
U.S.S.G. § 2B1.1 applies to offenses involving property
damage or destruction. See U.S.S.G. § 2B1.1. It directs the court
to increase the offense level by four if the loss exceeded “more
than $15,000” but was less than $40,000. Id. § 2B1.1(b)(1)(C). The
commentary further provides that “[t]he court need only make a
reasonable estimate of the loss. The sentencing judge is in a
unique position to assess the evidence and estimate the loss based
upon that evidence. For this reason, the court’s loss
determination is entitled to appropriate deference.” Id. § 2B1.1
cmt. (n.3(C)).
Because Hennessy’s convictions were based upon her
participation in a criminal conspiracy, relevant conduct under the
Guidelines included “all acts and omissions of others that were . . .
(i) within the scope of the jointly undertaken criminal activity, (ii)
in furtherance of that criminal activity, and (iii) reasonably
foreseeable in connection with that criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B). To determine what acts of other co-conspirators
are reasonably foreseeable to a defendant, the court must engage
in a two-prong analysis. United States v. McCrimmon, 362 F.3d
725, 731 (11th Cir. 2004). First, the court must determine the
“scope of criminal activity the defendant agreed to jointly
undertake.” Id. Then, the court must “consider all reasonably
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20-14341 Opinion of the Court 31
foreseeable acts and omissions of others in the jointly undertaken
criminal activity.” Id. (quotation omitted).
The evidence at trial established that Hennessy helped plan
the actions at the Kings Bay naval base with the other Plowshares
members for over two years. And on the night in question, she
went to the naval base with the group knowing that they were
armed with bolt cutters, a pry bar, spray paint, bottles of human
blood, and other tools. Although she contends that she had no
way of knowing what specific actions her codefendants would use
those tools for once on the naval base, given her knowledge of
the overall plan to conduct symbolic yet destructive
disarmament, the district court did not err in determining that the
acts of her codefendants were reasonably foreseeable to
Hennessy. Accordingly, the district court did not err in holding
her accountable for the entire loss amount when imposing the
U.S.S.G. § 2B1.1 enhancement.16 Bradley, 644 F.3d at 1290;
McCrimmon, 362 F.3d at 731.
16
Hennessy also argues that the district court’s determination of the loss
amount was improper in light of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), in which the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Hennessy was sentenced to 10 months’
imprisonment, which is well below the statutory maximum—a total of 20.5
years—and, therefore, Apprendi has no application here. Moreover,
Hennessy’s assertion that the loss amount had to be submitted to a jury and
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32 Opinion of the Court 20-14341
E. Whether the district court erred in failing to address
Grady’s RFRA-related sentencing argument
At sentencing, Grady argued that RFRA must be
considered in the context of the 18 U.S.C. § 3553(a) factors when
determining the appropriate sentence. The district court then
imposed a below-guidelines total sentence of 12 months and one
day imprisonment to be followed by three years of supervised
release, citing Grady’s health issues as a reason for the lesser
sentence. When asked whether she had any objections, Grady
stated that she did not. [Id. at 95–96] However, now on appeal,
Grady argues that the district court failed to address her argument
that RFRA must be considered in the context of the § 3553(a)
factors. She acknowledges, however, that “a body of law upon
which this argument rests has not been specifically developed as
yet.”
When, as here, a defendant fails to object to an alleged
sentencing error before the district court, we review for plain
proven beyond a reasonable doubt to avoid the constitutional concerns
associated with judicial factfinding as articulated in Apprendi is squarely
foreclosed by this Court’s precedent. See United States v. Dudley, 463 F.3d
1221, 1228 (11th Cir. 2006) (holding that there is no error under Apprendi
when the defendant is not sentenced beyond the statutory maximum and
“district courts may still impose fact-based sentencing enhancements under
an advisory guidelines system without violating the Sixth Amendment”).
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20-14341 Opinion of the Court 33
error. See United States v. Rodriguez, 627 F.3d 1372, 1377 (11th
Cir. 2010). To establish plain error, a defendant must show that
there was an “(1) error, (2) that is plain and (3) that affect[ed] [her]
substantial rights. If all three conditions are met, [we] may then
exercise [our] discretion to notice a forfeited error, but only if (4)
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Turner, 474
F.3d 1265, 1276 (11th Cir. 2007) (quotation omitted). “It is the law
of this circuit that, at least where the explicit language of a statute
or rule does not specifically resolve an issue, there can be no plain
error where there is no precedent from the Supreme Court or this
Court directly resolving it.” United States v. Lejarde-Rada, 319
F.3d 1288, 1291 (11th Cir. 2003). Accordingly, Grady cannot
establish plain error because, as she acknowledges, no precedent
exists at this time that instructs district courts to consider RFRA at
sentencing.
F. Whether the district court abused its discretion in failing to
give Grady’s requested mistake-of-fact jury instruction
At trial, Grady requested that the district court instruct the
jury as to mistake of fact.17 Specifically, she argued that she had
17
Grady requested the following jury charge:
An honest mistake of fact is a complete defense to the charge
in the indictment because it is inconsistent with the existence
of willfulness, which is an essential part of the charge.
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34 Opinion of the Court 20-14341
offered evidence that she possessed an “honest belief” that she
was “acting lawfully” based on her sincerely held religious belief
that nuclear weapons “are indeed immoral,” and if the jury were
to believe that the government was correct that nuclear weapons
are essential to national security and lawful, then she would be
mistaken—consistent with a mistake of fact instruction. In other
words, she asserted that the government’s position and her
position cannot both be right—one has to be mistaken—and if
hers was incorrect then she should get the benefit of a
mistake-of-fact instruction because she honestly believed that her
actions were lawful and that she was “uphold[ing] the highest
law.” The district court denied this request, concluding that the
instruction was “not an appropriate statement of the law for this
case.” On appeal, Grady argues that the denial of this instruction
was an abuse of discretion and because she possessed an honest
belief that her actions were lawful, she could not be convicted of
willful criminal conduct.
Such an honest mistake negates the criminal intent of a
defendant when the defendant’s acts would be lawful, if the
facts were as she supposed them to be. The burden of proof is
not on the Defendant to prove her honest belief of a mistaken
fact, since she has no burden to prove anything.
A defendant whose actions are based on her honest belief that
she was acting lawfully is not chargeable with willful criminal
conduct-even if her belief was erroneous or mistaken.
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20-14341 Opinion of the Court 35
“A criminal defendant has the right to have the jury
instructed on her theory of defense . . . . A trial court may not
refuse to charge the jury on a specific defense theory where the
proposed instruction presents a valid defense and where there has
been some evidence adduced at trial relevant to that defense.”
United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995)
(quotations and internal citations omitted). “We review a district
court’s refusal to give a requested jury instruction for abuse of
discretion.” United States v. Gumbs, 964 F.3d 1340, 1347 (11th
Cir. 2020) (quotation omitted).
A district court abuses its discretion if the requested
instruction was a correct statement of the law, the
subject matter of the instruction was not
substantially covered by other instructions, and the
instruction dealt with an issue in the trial court that
was so important that failure to give it seriously
impaired the defendant’s ability to defend himself.
Id. (alteration adopted) (quotation omitted). Here, the district
court did not abuse its discretion in declining to give the mistake-
of-fact instruction.
To prove destruction of government property on a naval
installation, the government had to prove beyond a reasonable
doubt that Grady (1) willfully and maliciously; (2) destroyed or
injured (or attempted to destroy or injure); (3) any structure,
conveyance, or other real or personal property; (4) located within
the special maritime and territorial jurisdiction of the United
States. See 18 U.S.C. § 1363. Similarly, to prove depredation of
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36 Opinion of the Court 20-14341
government property, the government had to prove that Grady
(1) willfully; (2) injured and committed a depredation; (3) against
United States property; (4) which resulted in over $1,000 dollars
of damage. See id. § 1361. In both instances, the word “willfully”
refers to consciousness of the conduct in question. In other
words, the government had to prove that Grady acted
consciously and deliberately, not that she knew or believed her
actions were illegal. See United States v. Urfer, 287 F.3d 663, 666
(7th Cir. 2002) (rejecting similar argument to Grady’s and holding
that “[d]estroying other people’s property is malum in se, and
thus is willful provided only that the defendant knows that he’s
destroying another person’s property without the person’s
authorization”); United States v. Kelly, 676 F.3d 912, 919 (9th Cir.
2012) (holding that a defendant violates § 1363 “when he willfully
acts, intending to destroy or injure any such property, and has no
legal justification or excuse for his action”).
There is no question that Grady acted consciously and
deliberately. The fact that she honestly believed her actions were
lawful because of her personal views on nuclear weapons is
irrelevant. See Kelly, 676 F.3d at 919 (“[E]ven defendants who
genuinely believe that their intentional, unlawful actions are
consistent with ‘the conscience of the people,’ as appellants put it,
are guilty.”); United States v. Moylan, 417 F.2d 1002, 1009 (4th
Cir. 1969) (holding that “the law does not allow the seizure of
public records and their mutilation or destruction, even when this
is done as an act of conscience to dramatize the protest of a
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20-14341 Opinion of the Court 37
presumed evil”); see also Heien v. North Carolina, 574 U.S. 54, 67
(2014) (“[A]n individual generally cannot escape criminal liability
based on a mistaken understanding of the law.”). Rather, as the
Fourth Circuit emphasized in Moylan when confronted with a
similar argument:
From the earliest times when man chose to guide his
relations with fellow men by allegiance to the rule of
law rather than force, he has been faced with the
problem how best to deal with the individual in
society who through moral conviction concluded
that a law with which he was confronted was unjust
and therefore must not be followed. Faced with the
stark reality of injustice, men of sensitive conscience
and great intellect have sometimes found only one
morally justified path, and that path led them
inevitably into conflict with established authority
and its laws. Among philosophers and religionists
throughout the ages there has been an incessant
stream of discussion as to when, if at all, civil
disobedience, whether by passive refusal to obey a
law or by its active breach, is morally justified.
However, they have been in general agreement that
while in restricted circumstances a morally
motivated act contrary to law may be ethically
justified, the action must be non-violent and the
actor must accept the penalty for his action. In other
words, it is commonly conceded that the exercise of
a moral judgment based upon individual standards
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38 Opinion of the Court 20-14341
does not carry with it legal justification or immunity
from punishment for breach of the law.
The defendants’ motivation in the instant case— the
fact that they engaged in a protest in the sincere
belief that they were breaking the law in a good
cause—cannot be acceptable legal defense or
justification. Their sincerity is beyond question. It
implies no disparagement of their idealism to say
that society will not tolerate the means they chose to
register their opposition to the war. If these
defendants were to be absolved from guilt because
of their moral certainty that the war in Vietnam is
wrong, would not others who might commit
breaches of the law to demonstrate their sincere
belief that the country is not prosecuting the war
vigorously enough be entitled to acquittal? Both
must answer for their acts.
417 F.2d at 1008–09 (emphasis added); see also United States v.
Douglass, 476 F.2d 260, 262–64, 264 n.7 (5th Cir. 1973) (citing
Moylan with approval and rejecting defendant’s argument that he
did not “willfully” violate 26 U.S.C. § 7603 by refusing to file taxes
because he believes the IRS is unconstitutional and that voluntary
payment of taxes is treason, concluding that it is not a defense
that his act was done in protest of government policies).
Accordingly, because mistake of fact was not a valid defense in
this case, the district court did not abuse its discretion in declining
to give the requested jury instruction.
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20-14341 Opinion of the Court 39
III. Conclusion
Because Grady, Hennessy, and Trotta are not entitled to
relief on any of their claims, we affirm their convictions and
sentences.
AFFIRMED.