RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0210p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ │ Nos. 13-3177/ 3181/ 3182/ v. │ 3183/ 3193/ 3194/ 3195/ 3196/ > 3201/3202/ 3204/ 3205/ 3206/ │ 3207/ 3208/ 3214 LOVINA MILLER (13-3177), KATHRYN MILLER (13- │ 3181), EMMA MILLER (13-3182), ANNA MILLER │ (13-3183), ELIZABETH MILLER (13-3193), LINDA │ SHROCK (13-3194), DANIEL MULLET (13-3195), │ LEVI MILLER (13-3196), JOHNNY MULLET (13- │ 3201), LESTER MULLET (13-3202), LESTER MILLER │ (13-3204), SAMUEL MULLET, SR. (13-3205), │ RAYMOND MILLER (13-3206), ELI MILLER (13- │ 3207), EMANUEL SHROCK (13-3208), and FREEMAN │ BURKHOLDER (13-3214), │ │ Defendants-Appellants. │ ┘ Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:11-cr-00594—Dan A. Polster, District Judge. Argued: June 26, 2014 Decided and Filed: August 27, 2014 Before: SUTTON and GRIFFIN, Circuit Judges; SARGUS, District Judge. _________________ COUNSEL ARGUED: Steven M. Dettelbach, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio for Appellee. Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., for Appellant in 13-3181. Matthew D. Ridings, THOMPSON HINE LLP, Cleveland, The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting by designation. 1 Nos. 13-3177; 3181/ 3182/ 3183/ 3193/ 3194/ United States v. Miller et al. Page 2 3195/ 3196/3201/ 3202/ 3204/ 3205/ 3206/ 3207/ 3208/ 3214 Ohio, for Appellant in 13-3183. Wendi L. Overmyer, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant in 13-3205. ON BRIEF: Michael E. Rosman, CENTER FOR INDIVIDUAL RIGHTS, Washington, D.C., Rhonda L. Kotnik, Akron, Ohio, for Appellant in 13-3181. Matthew D. Ridings, John R. Mitchell, Kip T. Bollin, Holly H. Little, Mark R. Butscha, Jr., THOMPSON HINE LLP, Cleveland, Ohio, for Appellant in 13-3183. Wendi L. Overmyer, Edward G. Bryan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant in 13-3205. David C. Jack, Wadsworth, Ohio, for Appellant in 13- 3177. George C. Pappas, Akron, Ohio, for Appellant in 13-3182. Brian M. Pierce, GORMAN, MALARCIK, PIERCE, VUILLEMIN & LOCASCIO, Akron, Ohio, for Appellant in 13-3193. Joseph A. Dubyak, Cleveland, Ohio, for Appellant in 13-3194. Samuel G. Amendolara, Youngstown, Ohio, for Appellant in 13-3195. Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant in 13-3196. Robert E. Duffrin, Youngstown, Ohio, Rhys B. Cartwright-Jones, Youngstown, Ohio, for Appellant in 13-3201. Damian A. Billak, Canfield, Ohio, for Appellant in 13-3202. J. Dean Carro, BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, North Canton, Ohio, for Appellant in 13-3204. Wesley A. Dumas, Sr., Cleveland, Ohio, for Appellant in 13-3206. James S. Gentile, Youngtown, Ohio, for Appellant in 13-3207. Nathan A. Ray, Akron, Ohio, for Appellant in 13-3208. Gary H. Levine, Cleveland, Ohio, for Appellant in 13-3214. Steven M. Dettelbach, Bridget M. Brennan, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, Dennis J. Dimsey, Thomas E. Chandler, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Steven M. Freeman, Michael Lieberman, Seth M. Marnin, Miriam Zeidman, ANTI-DEFAMATION LEAGUE, New York, New York, Lisa M. Bornstein, THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, Washington, D.C., David M. Raim, Joy L. Langford, Kate McSweeny, CHADBOURNE & PARKE LLP, Washington, D.C., for Amici Curiae. SUTTON, J., delivered the opinion of the court, in which GRIFFIN, J., joined. SARGUS, D.J. (pp. 24–35), delivered a separate dissenting opinion. _________________ OPINION _________________ SUTTON, Circuit Judge. A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith). Nos. 13-3177; 3181/ 3182/ 3183/ 3193/ 3194/ United States v. Miller et al. Page 3 3195/ 3196/3201/ 3202/ 3204/ 3205/ 3206/ 3207/ 3208/ 3214 A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them. At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions. I. In 1995, Samuel Mullet bought land in Jefferson County, Ohio. That land became the Bergholz Amish community in 2001, when a sufficient number of ordained ministers qualified it as a separate Amish church district. The new community appointed Samuel as its bishop. As bishop, Samuel controlled all aspects of life in the Bergholz compound and had the ability to order the “shunning”—excommunication—of community members who failed to follow the tenets of their Amish faith. R. 540 at 292. In 2006, Samuel excommunicated several church members who questioned Bergholz community practices and his leadership. Included in the group were Lavern and Mattie Troyer, whose son Aden was married to Samuel’s daughter Wilma, as well as Melvin and Anna Shrock, whose son Emanuel was married to Samuel’s daughter Linda. The excommunications were not good for relationships between and within the affected families. In one case, they led to a divorce. Aden left Wilma to join his parents in a Pennsylvania Amish community after unsuccessfully trying to convince her to join him. In another case, they led to parent-child Nos. 13-3177; 3181/ 3182/ 3183/ 3193/ 3194/ United States v. Miller et al. Page 4 3195/ 3196/3201/ 3202/ 3204/ 3205/ 3206/ 3207/ 3208/ 3214 animosity. Emanuel refused to leave Bergholz with his parents despite their repeated efforts to persuade him to do so. The Bergholz excommunications also tested church doctrine. Amish communities as a general rule practice strict shunning, meaning that if one Old Order Amish community excommunicates a community member, all other Old Order communities must excommunicate him until he obtains forgiveness from the community that first shunned him. The Bergholz excommunications proved to be an exception. After fleeing Bergholz for another community in Pennsylvania, the Troyers asked not to be subject to the strict-shunning rule. Citing unusual practices in Bergholz, the Troyers asked their new bishop to admit them to the Pennsylvania church without requiring them to seek forgiveness from Samuel—the Elmer Gantry of the Amish community to their mind. Given the number of former Bergholz residents in similar situations, Amish bishops from all over the country met in September 2006 to address the issue. Three hundred bishops convened, and they voted unanimously to reverse the Bergholz excommunications. At the same time that the ruling allowed the Troyers to settle into their new Pennsylvania community, it also exacerbated a custody battle between Wilma and Aden over their two children. The dispute began when a SWAT team took the children under an emergency temporary custody order issued to Aden. It ended two years, and one trial, later when Aden’s temporary custody of the children became permanent in an order declaring that “[a]ll parenting time shall be in Pennsylvania. Under no circumstances shall parenting time take place in Bergholz, Ohio.” Id. at 152. Losing Wilma’s children brought the Bergholz community to its knees and sparked a change in their faith-based traditions. Typically, Amish men do not trim their beards and Amish women do not cut their hair as a way of symbolizing their piety, demonstrating righteousness and conveying an Amish identity. Believing that the loss of Wilma’s children resulted from their lack of faith, several Bergholz residents cut their own hair and trimmed their own beards as a way to atone for their sins. The Bergholz community saw these acts as penance and as a symbol of rededication to their faith. Nos. 13-3177; 3181/ 3182/ 3183/ 3193/ 3194/ United States v. Miller et al. Page 5 3195/ 3196/3201/ 3202/ 3204/ 3205/ 3206/ 3207/ 3208/ 3214 The Bergholz community did not confine this ritual to their own ranks. They also used it to punish or harm others who were not members of the church district. From September 6 to November 9, 2011, several Bergholz community members committed five separate attacks on nine different individuals, slicing off the men’s beards and cutting the women’s hair. Religious and personal ties connected the nine victims of these attacks to the Bergholz community. Some were parents of Bergholz residents, some were friends, and some were associated with family members who had left Bergholz for other Amish districts.