Case 2:16-cr-00046-GMN-PAL Document 702 Filed 10/01/16 Page 1 of 11

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CHRIS T. RASMUSSEN, ESQ.

Nevada Bar 7149
RASMUSSEN & KANG
330 South 3 rd Street, Suite 1010
Las Vegas, Nevada 89101
(702) 464-6007
Attorney for Peter Santilli

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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PETER SANTILLI,
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Defendant.
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________________________________)

2:16-cr-00046-GMN-PAL

SANTILLIS MOTION TO DISMISS

COUNT THREE

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Defendant, Peter Santilli, through his attorney, Chris T. Rasmussen, Esq.,
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hereby submits Santillis Motion to Dismiss Count Three of the Indictment.
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MEMORANDUM OF POINTS AND AUTHORITIES
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Factual Summary
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Santilli is charged in the instant case for his alleged involvement in a protest that
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took place in Bunkerville, Nevada. Santilli is a internet radio host that focuses on
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controversial issues surrounding a myriad of news topics. Some have called him a
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shock jock in the manner in which he reports, comments and advocates his positions
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in his self-entitled radio program, www.thepetesantillishow.com.
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At the time prior to and during the incident that took place in April 2014, Santillis
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radio program was broadcasted/streamed from a studio in Southern California. The
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Bundy family started to become a national story after one of Cliven Bundys sons were
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arrested during an altercation with government officers. This son claimed he was taking
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photos of government agents who were positioned as snipers in the hills above his
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familys home. This incident sparked citizens around the country to become acquainted
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Case 2:16-cr-00046-GMN-PAL Document 702 Filed 10/01/16 Page 2 of 11

with the Bundys battle with the federal government over their free range cattle, in the

Gold Butte allotment in Nevada. The Bundys have been locked in a battle with

government officials as to the grazing rights and the actual ownership of the land in

which the cattle roam for decades. The Bundy family who are devout Mormons reside

in a small ranch, just off the freeway between Las Vegas and Mesquite, Nevada. They

became a media sensation during the events in April, some of which were recorded and

broadcast through Santillis Youtube channel.

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In fact, the now famous April, 9, 2014, video that Santilli recorded with his Ipad
received over 1.8 million views. See https://www.youtube.com/watch?v=LhJ6H9vlEDA

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This video depicted a heavy handed government response to Bundy supporters

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protesting on the side of the road in which government contractors had shot and killed

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their cattle as part of an impoundment order. Santillis posting of this video made him

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an instant spokesman for the Bundy cause. FoxNews and many other media outlets

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replayed Santillis video showing a people in the protest tasered. Additionally,

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government agents used police dogs in an attempt to control the crowd, a method not

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scene since the 1960's racial disputes where police commonly used dogs against

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African-Americans. Some of the viewers, mainly from western states, came out to be

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part of a larger protest against what they saw as government over reaching of a small

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Mormon family and their cattle.

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Santilli while out at the Bundy Ranch with his news gathering equipment

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interviewed many people and streamed all of his video and audio onto the internet.

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During these broadcasts he called for people who were legally allowed to carry a

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firearm to come out to the private property on the Bundy Ranch to participate in an

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open-carry protest. His call for people to stand up and protest with legally possessed

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firearms is Constitutional speech. His style of advocacy journalism, is controversial and

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disliked by some. However, this is the type of disliked speech that is protected.

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During the Stand-Off, the Sheriff of Clark County travels out to the Bureau of
Land Management (BLM), to encourage them to come back in the Fall when not so

Case 2:16-cr-00046-GMN-PAL Document 702 Filed 10/01/16 Page 3 of 11

many people are there protesting. The Sheriff eventually negotiates with the BLM who

agree to release the cattle and leave the area. On a makeshift stage near Bundy

ranch, the Sheriff proclaims that the BLM are leaving and the cattle will be released.

Cliven Bundy announces to the crowd for them to go out and block the freeway to

enable the cattle to come back across to his land with any safety concerns.

Unfortunately, the BLM decided to stay in the area with heavily armed agents pointing

at the on coming cowboys who were not brandishing weapons. During this stand-off,

Santilli was up on the freeway parked behind a local television news satellite truck in

hopes of catching the cattle crossing back on to Bundy Ranch.

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Unbeknownst to Santilli, the cattle were being released underneath the freeway

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at an overpass about a 100 meters from where the media and local police had

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congregated to watch the cattle.

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This Count alleges that Santilli conspired to commit violations involving firearms

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is not consistent with the facts or law. Santilli never possessed a weapon or directed

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anyone with a weapon to get into an assaultive position against any law enforcement

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personnel.

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Legal Argument

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The government has alleged in count three that Santilli somehow knowingly

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aided and abetted others to use and carry firearms, which were brandished, during and

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in relation to a crime of violence. (See Indictment, Count Three).

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However, there was no crime of violence that took place as the Sheriff

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negotiated the release of the cows as part of his legal duty to enforce criminal law upon

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land in the County of Clark in which he was elected.

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The Court is required to determine whether this count constitutes a crime of

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violence. The case law has changed over the last two years making the analysis much

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more instructive. After the proper analysis, it is obvious that Count 3 alleging a violation

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of 18 USC 924c does not reach the legal definition of a crime of violence and should

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be dismissed.

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1. The Categorical Approach Utilized to Determine if an Offense is a Crime

of Violence is Outlined Below

To determine whether an offense qualifies as a crime of violence under section

18 U.S.C. 924 (c)(3), the court must apply the categorical approach set forth in Taylor

v. United States, 495 U.S. 575 (1990). See United States v. Piccolo, 441 F.3d 11084-

1086-87 (9th Cir. 2006) (In the context if crime of violence determinations under section

924( c), our categorical approach applies regardless of whether we review a current or

prior crime.) (citing United States v. Amparo, 68 F. 3d 1222, 1224-26 (9 th Cir. 1995)).

The categorical approach directs the court to determine whether the [offense] is

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categorically a crime of violence by comparing the elements of the [offense] with the

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generic federal definition- here, the definition of crime of violence set forth in Section

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924 (c)(3). United Sttes v. Sahagun- Gallegos, 782 F.3d 1098 (9 th Cir. 2015).

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The categorical approach requires the court to look to the elements of the

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offense other than the particular facts underlying the defendants own [case]. United

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States v. Dominguez- Maroyoqui, 748 F.3d 918, 920 (9 th Cir. 2014.) Because the

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categorical approach is concerned only with what the offense necessarily involves, the

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court must presume that the offense rest upon nothing more than the least of the acts

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criminalized, and then determine whether those acts are encompassed by the generic

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federal definition, the offense cannot qualify as a crime of violence, even if the

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particular facts underlying the defendants own case might satisfy that definition.

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Dominguez- Maroyoqui, 748 F.3d at 920 (citation and internal quotation marks omitted).

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In ascertaining the scope of conduct criminalized by the elements of an offense,

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the court considers not only the statutory language, but also the interpretation of that

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language in judicial opinions. Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054 (9 th

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Cir. 2011) (internal quotation marks omitted). To find an offense overboard, there must

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be a realistic probability, not a theoretical possibility, that the statue would be applied

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to conduct not encompassed by the generic federal definition. Gonzales v. Duenas-

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Alvarez, 549 U.S. 183, 193 (2007).

Case 2:16-cr-00046-GMN-PAL Document 702 Filed 10/01/16 Page 5 of 11

2. The Force Clause

The first alternative definition of crime of violence in 18 U.S.C. 924(c)(3)(A)

describes it as a felony offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of another. This

definition of crime of violence appears in several places throughout the code and the

sentencing guidelines, and is generally known as the force clause. Critically, physical

force does not embrace de minimis or insignificant force. Rather, the phrase connotes

serious and violent force.

The lead case is Johnson v. United States, 559 U.S. 133 (2010), in which the

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Supreme Court held that the defendants prior battery conviction under Florida law was

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not a violent felony under the Armed Career Criminal Act (ACCA). The definition of

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violent felony in the ACCA includes materially the same force clause as the one at

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issue in the present case. 1 The Florida battery statute, as interpreted by the Florida

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Supreme Court, could be violated with any intentional by the Florida Supreme Court,

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could be violated with any intentional physical contact, no matter how slight. The

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government in Johnson asked the Court to adopt a common law concept of force that

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would have brought offenses involving offensive touching into the realm of violent

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felonies. The Court rejected that approach on the ground that such a watered down

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concept of force was at odds with the very term it was meant to define- violent

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felony. The Court held:

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We think it clear that in the context of a statutory definition of violent felony, the
phrase physical forcemeans violent force- that is, force capable of causing

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The force clause in the ACCA definition of violent felony is different from the force
clause in Section 924(c)(3)(A) in that the force in the ACCA contact can only be directed at the
person of another, and not the person or property of another. However, the addition of
property of another in the Section 924( c) force clause does not change the result here, because
Section 372 does not have an element regarding the use of the force against property. Also, both
force clauses require the dame degree of violent force. See United States v. Lawrence, 627 F.
3d. 1281, 128 n.3 (9th Cir. 2010) (finding the force clauses in the ACCA and in U.S.S.G. 2L1.2
to all materially identical, and holding that a previous case interpreting the clause in one
context was applicable to another context).

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physical pain or injury to another person...When the adjective violent is attached

to the noun felony, its connotation of strong physical force is even clearer.

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Johnson, 559 US at 140 (emphasis in original; citations omitted).
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The Ninth Circuit in Dominguez- Maroyoqui, 748 F.3d 918, applied the Johnson
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holding as to force clause to determine whether the defendants prior conviction for
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assaulting a federal officer was a crime of violence requiring an enhancement to
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defendants sentence under U.S.S.G. 2L1.2. The statute defining the prior conviction
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stated that anyone who forcibly assaults, resists, opposes, impedes, intimidates, or
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interferes with any [federal employee or office] while engage in or on account of the
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performance of official duties,: commits a felony if the offense involved something more
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than a simple assault. 18 USC 111 (a). To resolve whether Section 111(a) was a
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crime of violence, the Court followed the categorical approach described above. Under
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the categorical approach, the crime-of-violence in all cases or in none. Id. at 920
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(citation and internal quotation marks omitted).
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The Court examined its previous decision defining the scope of the offense of
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assulting a federal officer and determined that the degree of force necessary for a
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conviction fell well short of the Johnson standard of violent force. [A] defendant may be
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convicted of violating section 111 if he or she uses any force whatsoever against a
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federal office designated in 18 U.S.C. 1114. Id. at 921 (citation and internal quotation
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marks omitted; emphasis added by Dominguez- Maroyoqui court).
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Thus, because Section 111 (a) criminalized a broader swath of conduct that the
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conduct by the definition of crime of violence, the Court held that the defendants prior
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conviction for assaulting a federal office categorically was not a crime of violence. Id. Also,
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the Court held that the Court held the modified categorical approach, discussed in
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Descamps v. United States, 133 S. Ct. 2276 (2013), was not applicable because, even if
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the statue were viewed as divisible, none of the alternative ways of committing the crime
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(including resists, opposes, and intimidates) required proof of the degree of force
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necessary to constitute a crime of violence under the Johnson formula. Without at least
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one such match, the modified categorical approach has no role to play here. Dominguez-

Maroyoqui, 48 F.3d at 921-22 (citing Descamps, 133 S. Ct. At 2285).

The Ninth Circuit recently held in United States v. Parnell, __F.3d.__, 2016 WL U.S.

App LEXIS 6629 at *13 (9th Cir., April 12, 2016), that the defendants prior Massachusetts

conviction for Armed Robbery was not a predicate violent felony under the force clause

for purposes of ACCA sentencing, because the robbery could be committed with any

degree of force as long as the victim is aware of it.

Thus, it did not reach the level of force required by Johnson- force capable of causing

physical pain or injury to another person. See also United States v. Werle, 815 F.3d 614,

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21 (9th Cir. 2016) (conviction under Washingtons riot statute is not a violent felony because

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it defines force more broadly than physical force as defined by Johnson.); United States

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v. Dunlap, 2016 WL 591757 (D.Or., Feb. 12, 2016) (No. 1:1-cr-00406-AA) (Oregon

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conviction for Robbery in the Third Degree was not a violent felony because it requires

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only minimal force).

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3. Count Two Alleges 18 USC Section 372 Which Does Not Require Force
Capable of Causing Physical Pain or Injury to Another Person

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If the crimes of battery (Johnson), assaulting a federal officer (Dominguez17
Maroyoqui), armed robbery (Parnell), riot (Werle), and robbery in the third degree (Dunlap)
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are not violence under the force clause, the government will be hard pressed to explain
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how a Conspiracy to Impede or InjuryOfficers of the United States, 18 U.S.C. 372, is a
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crime of violence.
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As it relates to this prosecution, Section 372 prohibits two or more person from
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conspiring to prevent, by force, intimidation, or threat, injure, any person...from discharging
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any duties [of his or her office.] Notably, the central act targeted by the offense is a
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conspiracy to prevent officials from discharging their duties. Force, intimidation, and
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threats, are simply three ways the defendant can conspire to carry out such a conspiracy.
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But the word force is not qualified by the word physical or any other adjective that would
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give it the necessary connotation of sufficient force capable of causing physical pain or
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injury to another person. See Johnson, 559 U.S. at 134. One can use force without using

or threatening to use the sort of physical violence contemplated by Johnson. Simply put,

if forcibly assaulting a federal office is not a crime of (Dominguez- Maroyoqui), then a

fortiori, conspiring to prevent by force also is not a crime of violence.

The terms intimidation and threat also fall short of requiring the use, attempted

use, or threatened use of violent physical force. In fact, the act of forcibly...intimidating]

a federal officer is one way of violating Sections 111(a) that the Dominguez-Maroyoqui

Court held would not constitute a crime of violence. Dominguez- Maroyoqui, 748 F.3d at

921. The term threat is insufficient as well, because it is not limited to the threatened use

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of physical force against the person of property of another. A threat under Section 372

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does not have to be a threat of violence, and therefore, it is insufficient to meet the

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definition of crime violence. See Parnell, 2016 U.S. App. LEXIS 6629, *9. (defining

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threatened use of physical force under the force clause as requiring some outward

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expression or indication of an intention to inflict pain, harm or punishment.)

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The case law applying and interpreting Section 372 further demonstrates that is not

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a crime of violence. For example, in United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997),

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the defendants conviction under Section 372 was upheld based on evidence that the

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harassed a bankruptcy judge by mailing him bogus legal documents including a Notice

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and Demand of Judges Impartiality and a Citizens Arrest Warrant for Citizens Arrest

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calling for the judges arrest. The letter were described as intimidating or threatening,

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but there is no indication that they contained any threats of physical force against the

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judge.

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The defendants in Finn v. United States, 219 F.2d 894 (9th Cir. 1955), were

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convicted of Section 372 for performing a citizens arrest on a federal prosecutor and

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attempting to have him booked into a local police station. No force was used beyond that

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necessary to place the complaint prosecutor into handcuffs; i.e. there was no physical

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violence or threats thereof. The conviction were affirmed. See also United States v. Hall,

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342 F.2d 849 (4th Cir. 1965) (evidence of a conspiracy to arrest an undercover office, with

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no other evidence of a plan for violence, was sufficient to affirm a conviction under Section

372).

The final point with regard to Section 372 is that it does not attach the required mens

rea to the element the element of force, intimidation or threats. This is yet another reason

why Section 372 fails to meet the definition of a crime of violence. See United States v.

Lawrence, 267 F.3d 1281, 1284 (9th Cir. 2010) ([T]o qualify as defining a violent felony,

a state statute must require that the physical force be inflicted intentionally, as opposed to

recklessly or negligently.); see also Begay v. United States, 553 U.S. 134, 144-45 (2008)

(the ACCAs definition of violent felony refers to crimes that involve purposeful, violent, and

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aggressive conduct).

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In sum, Section 372 categorically is not a crime of violence, as it does not contain

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the necessary element of the use, attempted use, or threatened use of physical force

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against the person or property of another.

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4. The Modified Categorical Approach Does Not Apply

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The modified categorical approach may be used to determine whether one variant

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of a divisible statute could be considered a crime of violence. Here, the modified

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categorical approach cannot assist the government because Section 372 would constitute

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a crime of violence.

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A divisible statute lists multiple, alternative elements, and so effectively creates

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several different...crimes. Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557

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U.S. 29, 41 (2009)). A statute is indivisible if does not contain alternative elements but

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instead criminalizes a broader swath of conduct than the relevant generic offense. Id. at

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2281. The critical distinction is that while indivisible statues may contain multiple,

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alternative means of committing the crime, only divisible statutes contain multiple,

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alternative elements of functionally separates crimes. Rendon v. Holder, 764 F.3d 1077,

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1084-85 (9th Cir. 2014); see also United States v. Cabrera-Gutierrez, 756 F. 3d 1125, 1137

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n. 16 (9th Cir. 2014) ([U]nder Decamps, what must be divisible are the elements of the

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crime, not the mode or means of providing an element.). An offense have alternative

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elements, as opposed to means if the necessary factor must be alleged in the indictment

and found by the jury. Almanza- Arenas v. Lynch, 815 F. 3d 4469 (9th Cir. 2015)(en banc).

Section 372 is indivisible with regard to the phrase force, intimidation, or threat,

because these words simply refer to three means of committing the one crime of

conspiring to prevent federal official from discharging his duties, The words do not each

represent alternative elements of the offense. The government would have to agree with

this point, as it has alleged a single conspiracy to prevent by force, intimidation and

threats federal officer from discharging their duties. See Dkt. 250.

Further, even if Section 372 were deemed divisible, that characterization would not

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help the government. As discussed above, none of the alternative ways of preventing an

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officer from discharging his duties would constitute a crime of violence.

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5. The Residual Clause of Section 924(c)(3)(B) is Void Vagueness

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Section 924(c)(3)(B) provided an alternative definition of crime of violence as an

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offense that by its nature, involves a substantial risk that physical force against the person

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or property of another may be used in the course of committing the offense. The United

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States Supreme Court struck down a materially similar residual clause defining violent

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felony in the ACCA because it was unconditionally vague. Johnson v. United States, 135

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S Ct 2251 (2015). Pursuant to the Johnson ruling, Section 372 cannot qualify as a crime

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of violence under the equally vague residual clause in Section 924(c)(3)(B).

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The difference in language between the residual clause struck down by Johnson

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and Section 924(c)(3)(B) does not lead to a different result, as the Ninth Circuit recognized

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in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). Dimaya involved the definition of crime

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of violence in 18 USC 16(b), which is virtually identical to Section 924(c)(3)(B).2 The

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Court held after a careful analysis of Section 16(b) and the ACCA residual clause at the

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issue in Johnson, they are subject to the same constitutional defects and ...Johnson

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The 16(b) residual clause defines crime of violence as any other offense that is a
felony and that by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.

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dictates that 16(b) be held void for vagueness. Dimaya, 803 F.3d at 1115.

6. Dismissal is the Only Proper Remedy

Count Three of the Superseding Indictment fails to state an offense, because the

alleged crime of violence - a Conspiracy to Impede Officers of the United States- is not,

as a matter of law, a crime of violence. The necessary element of crime of violence can

never be proven, because, under the categorical approach discussed above, the facts are

irrelevant. The court along decided whether Section 372 is a crime of violence based solely

on the elements. See Model Crim. Jury Instr. 9th Cir. 8.72 (2010) regarding U.S.C. 924(

c) (in which the jury is instructed that the underlying offense is a crime of violence); see

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also Amparo, 68 F.3d at 1226 (court determines as a matter of law whether underlying

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offense is a crime of violence). Because Section 372 is not a crime of violence, Count

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Three fails to state an offense, and it must be dismissed.

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Conclusion

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Count three should be dismisses as Section 372 is not a crime of violence.

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DATED this 1st day of October, 2016.

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/s/ Chris T. Rasmussen

_____________________
CHRIS T. RASMUSSEN, ESQ.
Nevada Bar 7149
RASMUSSEN & KANG
330 South 3 rd Street, Suite 1010
Las Vegas, Nevada 89101
(702) 464-6007
Attorney for Peter Santilli