Federal Government Responds To Ralph Lang, 4-22-13:
GOVERNMENT'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
By Martin Hill
LibertyFight.com
April 29, 2013



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LIBERTYFIGHT.COM EXCLUSIVE: Ralph Lang Federal Re-Indictment 4-24-2013

2008: Ralph Lang tells WI lawmakers that abortion doctors and judges "should be executed and killed"


IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN UNITED STATES OF AMERICA
v.
RALPH LANG,
Defendant.

Case No. 12-CR-00043-WMC

GOVERNMENT'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Defendant Ralph Lang moves to dismiss the Indictment, contending (1) that Count 1 fails to clearly allege an offense such that it is certain that the grand jury found probable cause that Lang committed the intended federal offense; and (2) that the proof he anticipates the government submitting will be insufficient to prove Count 1. The defendant's first claim, even if correct, would be mooted if the government obtained a superseding indictment erasing any alleged ambiguity in the charging language. Thus, in an abundance of caution and without conceding the legitimacy of Lang's claim, the government intends to seek a clarifying indictment. If the new indictment is returned, Lang's first argument will necessarily be moot. Defendant's second point fails because it necessarily relies upon his own inaccurate and incomplete summary of disputed facts in what amounts to a pretrial attack on the sufficiency of the government's proof. Accordingly, his motion should be denied. Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 1 of 9


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I. Sufficiency of the Charge

Lang argues that the indictment should be dismissed because Count 1 fails to accurately set forth the elements of 18 U.S.C. - 245(b)(1)(E) such that it is certain that the grand jury found probable cause for the proper offense.1 Specifically, Lang argues that the grammatical structure of Count 1 can be read as requiring only an attempted use of force or threat of force, and he argues that under Seventh Circuit case law, the government is required to prove an actual use or threat of force. Because the government intends to seek a superseding indictment clarifying the charging language, the motion should be denied as moot.

Count 1 of the indictment reads in relevant part:

On or about May 25, 2011, in the Western District of Wisconsin, the defendant, RALPH LANG, willfully attempted: (1) to injure, to intimidate, and to interfere with persons, by force or threat of force, because they were and had been participating in and enjoying the benefits of a program and activity receiving Federal financial assistance; and (2) to intimidate persons, by force and threat of force, from participating in and enjoying the benefits of a program and activity receiving Federal financial assistance. . .

Title 18 U.S.C. - 245(b)(1)(E) states in pertinent part:

Whoever . . . by force or threat of force willfully injures, intimidates, or interferes with, or attempts to interfere with any person because he is or has been, or in order to intimidate such person or any other person. . .from participating in or enjoying the benefits of any program or activity receiving Federal financial assistance. . .[shall be punished].

1 Lang's argument is limited to the issue of the grand jury's understanding of the offense. He does not argue that he has received insufficient notice of the nature of the charge such that he cannot adequately prepare a defense; or that he would be unable to raise a judgment as a bar to future prosecutions. Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 2 of 9


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Lang argues that the word "attempted"- in the indictment modifies both "by force or threat of force"- and "to injure, to intimidate, and to interfere with persons."- Therefore, Lang claims, the indictment is defective, arguing that 18 U.S.C. - 245(b)(1)(E) requires proof of an actual use or threat of force, and that the indictment's grammatical structure requires only an attempted use or threat of force.2

Lang's argument relies entirely upon the Seventh Circuit's holding in United States v. Thornton, 538 F.3d 741 (7th Cir. 2008), where the court reversed a bank robbery conviction because the jury had been instructed that it could convict the defendant for attempting to intimidate a bank employee, whereas the specific language of the bank robbery statute (18 U.S.C. - 2113(a)) required actual intimidation.3 Lang argues that the holding in Thornton regarding 18 U.S.C. - 2113(a) applies to the instant case because of the similar statutory language.

Examining the same statute, the Second, Fourth, Sixth, and Ninth Circuits have all concluded that an attempt to use force and violence or to intimidate is sufficient to

2 The government contends that Count 1, read as a whole and in light of its citation to 18 U.S.C. - 245(b), can be read as requiring proof of an actual use of force or threat of force. The word "attempted"- can be read as modifying only the substantive crime of injuring, interfering or intimidating those providing, participating in or benefitting from a program receiving federal assistance, and not modifying the means of the crime, an actual use of force or threat of force. In addition, it is this United States Attorney's Office's practice to provide the grand jury with copies of the relevant statute to ensure that it considers the statutory language. However, if the grand jury returns a superseding indictment, the Court need not resolve this issue.

3 Title 18 U.S.C. - 2113(a) states in pertinent part: "Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another . . . any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association [shall be punished]."-

Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 3 of 9


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establish a violation of 18 U.S.C. - 2113(a). See United States v. Jackson, 560 F2d 112, 116-17 (2d Cir. 1977); United States v. McFadden, 739 F.2d 149, 152 (4th Cir. 1984); United States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990); United States v. Wesley, 417 F.3d 612, 618 (6th Cir. 2005). In a case preceding Thornton, the Fifth Circuit used the same reasoning as Thornton and also held that 18 U.S.C. - 2113(a) requires that a defendant actually commit an act of intimidation. United States v. Bellew, 369 F.3d 450, 453-56 (5th Cir. 2004).

The Seventh Circuit, however, has never considered the applicability of Thornton to 18 U.S.C. - 245, and that the overall statutory language of 18 U.S.C. - 245 differs in significant respect from that of 18 U.S.C. - -2113. While - 2113(a) contains a brief punishment section that simply states that the penalties for violating the statute include a 20-year term of imprisonment and/or a fine, - 245 contains language suggesting that prosecutions may be based on attempts to violate the statute. See 18 U.S.C. - 245(b) (setting a ten-year term where violations lead to bodily injury or involve "include the use, attempted use, or threatened use"- of certain types of weapons, and allowing for a life sentence or the death penalty if a violation of the statute involves "kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill"-."-).

Nevertheless, assuming without conceding that 1) Thornton's holding is applicable to this case, and 2) a grand juror may have read the indictment as requiring proof only of an attempted use of force or threatened force, in an abundance of caution, Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 4 of 9


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the government intends to seek a superseding indictment to clarify the appropriate offense language. As such, Lang's motion should be denied as moot.

II. Sufficiency of the Proof

Lang also argues that the indictment should be dismissed because he believes that "the government cannot meet its burden and establish that the person Lang attempted to kill received federal financial assistance."- (Def. Brief at p. 6). In an attempt to style his motion as a "pure question of law,"- Lang asserts that his motion "does not strike at the sufficiency of the government's proof."- (Def. Brief at p. 6). He predicts -- based on his view of the discovery materials in this case -- that, as a matter of law, the government will not be able to prove he committed this offense. Lang's motion is merely a pretrial attack on the sufficiency of the government's proof based on his incorrect and misleading summary of the proof he thinks the government will submit, and as such, it should be summarily denied.

An indictment ordinarily is tested solely on its sufficiency to charge an offense, regardless of the strength or weakness of the government's evidence. United States v. Sampson, 371 U.S. 75, 78-79 (1962). In attempting to convince this Court that his is a purely legal challenge, Lang relies on three cases, none of which, upon closer examination, offer any support for Lang's motion. In fact, each of these cases supports the government's position that Lang's motion must be denied.

In United States v. Salgado, 519 F.3d 411 (7th Cir. 2008), the Court of Appeals found the government's proof insufficient upon review after a jury trial. That an appeals court has the power to review the evidence post-trial hardly offers support for Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 5 of 9


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Lang's argument that this Court should review the sufficiency of the proof on a pretrial motion to dismiss. Lang cites to United States v. Pope, 613 F.3d 1255, 1260 (10th Cir. 2010), for the proposition that district courts "may entertain motions that require it to answer only pure questions of law."- (Def. Brief at p. 6). While this is certainly accurate, the actual holding in Pope supports denying Lang's motion. In Pope, the defendant challenged the indictment and proffered evidence to show the reason he possessed the firearm. The government opposed the motion pointing out that "as a general rule, motions to dismiss seeking to test the legal adequacy of an indictment must be analyzed solely on the basis of the factual allegations contained in the indictment."- Id. at 1258. The government made it clear -- as it does here -- that the motion was not based on agreed facts; the government objected to the facts proffered by the defendant; and the motion was not capable of resolution as a matter of law. Id. The district court agreed and denied the motion. The Court of Appeals affirmed, stating the "motion to dismiss could not be appropriately resolved before trial."- Id. Lang's motion should be denied for the same reason.

Finally, Lang relies on United States v. Risk, 843 F. 2d 1059 (7th Cir. 1988). Again, a careful reading of Risk supports denying Lang's motion. In Risk, the defendant appended discovery materials to his motion to dismiss; the government admitted that those facts accurately summarized the facts underlying the indictment; and the government did not challenge the district court's authority to use those facts to decide the motion to dismiss. With those concessions by the government, the district court

Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 6 of 9


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dismissed the indictment because the court found the allegations in the indictment insufficient to state a claim under the currency transaction reporting statute. Id. at 1061. The district court found that the government's own facts did not constitute a violation of any statute. The Court of Appeals explained that the district court dismissed the indictment "not because the government could not prove its case, but because there was no case to prove."- Id.

In connection with Lang's motion, the government makes none of these concessions. While certainly agreeing that federal funds cannot be used for abortion, the government does not agree with Lang's contention that "the physician [he] allegedly attempted to murder could not and did not receive federal financial assistance."- (Def. Brief at p. 8). Finally, the government does not concede that Lang's characterization of the facts is accurate or complete; thus, the government does not concede that this Court can use the facts Lang submits to decide his motion to dismiss.

Lang states that he is relying on discovery provided to him on March 18, but he neglects to describe for the Court the detailed facts presented to the grand jury on March 28, 2012, underlying the indictment. (This grand jury testimony was provided to Lang in discovery on March 6, 2013). It has been federal law for many years that there is no federal funding for abortion, with the exceptions of rape, incest, or the health of the mother. Numerous healthcare services provided by Planned Parenthood, however, are eligible for federal funding under the federal Medicaid program, a fee-for-service insurance providing medical and health-related assistance for qualifying individuals based on income, age, chronic illness, or disability.

Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 7 of 9


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Lang's mischaracterization of the government's intended proof shows a fundamental misunderstanding of federal funding at Planned Parenthood. Federal funding is by healthcare practice, not by practitioner. Put another way, what a practitioner does for a patient governs the possibility of federal funding, not the title and position of the practitioner. Nurses and doctors who perform surgical abortion services, which receive no federal funding, also perform numerous healthcare services which are eligible for federal funding, including prescribing and dispersing birth control pills and emergency contraception pills (the "morning-after"- pill) . Lang made it clear in his recorded statement that he intended to kill both doctors and nurses, all of whom provide many healthcare services eligible for federal funding, and he specifically noted that he intended to stop both surgical abortion and "chemical abortion,"- which he stated included birth control pills and the "morning-after"- pill.

Thus, there are clearly facts sufficient for a jury to find that Lang intended to kill health care providers who provided health care services eligible for federal funding.

Lang argues that he attempted to murder solely an abortion-providing doctor and, since Planned Parenthood receives no federal funds for abortion services, the government cannot prove this case. Despite Lang's attempt to style this as an attack on the indictment, it is instead an attack on the evidence. What Lang wants is a pretrial ruling from the Court that the government's proof -- as viewed by the defendant -- will be insufficient to prove the charge in Count 1. This is simply a request for the equivalent of summary judgment, a procedure that does not exist in a criminal case. United States v. Browning, 436 F.3d 780, 781 (7th Cir. 2006); United States v. Ladish Malting,

Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 8 of 9


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135 F.3d 484, 490-91 (7th Cir. 1998); United States v. Thomas, 150 F.3d 743, 747 (7th Cir. 1998). As such, Lang's motion to dismiss on this basis should be denied.

Dated this 22nd day of April 2013.
/s/
____________________________________
JOHN W. VAUDREUIL
United States Attorney

/s/
____________________________________
ELIZABETH ALTMAN
Assistant U. S. Attorney

/s/
____________________________________
ALI AHMAD
Civil Rights Division Attorney

Case: 3:12-cr-00043-wmc Document #: 119 Filed: 04/22/13 Page 9 of 9


Martin Hill is a Catholic paleoconservative and civil rights advocate. His work has been featured in the Los Angeles Daily News, San Gabriel Valley Tribune, Contra Costa Times, Pasadena Star News, Silicon Valley Mercury News, Long Beach Press Telegram, Inland Valley Daily Bulletin, L.A. Harbor Daily Breeze, Whittier Daily News, LewRockwell.com, WhatReallyHappened, Infowars, PrisonPlanet, Economic Policy Journal, FreedomsPhoenix, Veterans Today, Educate-Yourself.org, The Wayne Madsen Report, Devvy.com, Rense, Antiwar.com, IamtheWitness.com, The Dr. Katherine Albrecht Show, Jonathan Turley blog, National Motorists Association, RomanCatholicReport.com, Republic Broadcasting Network, WorldNetDaily, Dr. Kevin Barret's Truth Jihad radio show, The Orange County Register, KNBC4 Los Angeles, Los Angeles Catholic Lay Mission Newspaper, KFI 640, The Press Enterprise, Redlands Daily Facts, BlackBoxVoting, Strike-The-Root, David Icke, and many others. Archives can be found at LibertyFight.com.

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