united states district court eastern district of new … · wan hongjuan, zhu zirou, & does 1-5...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ZHANG JINGRONG, ZHOU YANHUA, ZHANG PENG, ZHANG CUIPING, WEI MIN, LO KITSUEN, LI XIURONG, CAO LIJUN, HU YANG, GAO JINYING, CUI LINA, XU TING, AND BIAN HEXIANG,

Plaintiffs,

-against-

CHINESE ANTI-CULT WORLD ALLIANCE (CACWA), MICHAEL CHU, LI HUAHONG, WAN HONGJUAN, ZHU ZIROU, & DOES 1-5 INCLUSIVE,

Defendants.

Civil Action No. 15-CV-1046 (SLT) (VMS)

SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF THE CONSTITUTIONALITY OF TITLE 18 SECTION 248 (A) (2)

TERRI E. MARSH

HUMAN RIGHTS LAW FOUNDATION 1875 K STREET NW

SUITE 400 WASHINGTON D.C. 20006

(202) 697-3858

JOSHUA S. MOSKOVITZ BERNSTEIN CLARKE & MOSKOVITZ PLLC

11 Park Avenue, Suite 914 New York, New York 10007

(212) 321-0087

JONATHAN C. MOORE BELDOCK LEVINE & HOFFMAN LLP

99 Park Avenue, PH/26th Floor New York, New York 10016

(212) 490-0400 Dated: May 21, 2018

Case 1:15-cv-01046-PKC-VMS Document 171 Filed 05/21/18 of 33 PageID #: 2739

TABLE OF CONTENTS

Page

i

I. INTRODUCTION ...............................................................................................................1

II. DEFENDANTS’ MOTION TO AMEND IS UNTIMELY AND PREJUDICIAL.............2

A. Rule 8(c) of the Federal Rules .................................................................................2

B. Rule 16(b) of the Federal Rules ...............................................................................6

III. 18 U.S.C. § 248(A)(2) IS A CONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER .............................................................................................8

A. Section 248 (a) (2) is a Valid Exercise of Congress’ Power to Regulate Conduct that Substantially Affects Interstate Commerce ......................................10

IV. FACEA IS CONSTITUTIONAL AS APPLIED IN THIS CASE ....................................20

A. The Congressional findings are relevant to the case at bar ....................................22

B. The regulated activity is commercial as applied to this case .................................22

C. The link between the prohibited activity and its effect on interstate commerce is not attenuated. ...................................................................................24

V. CONCLUSION ..................................................................................................................26


ii

TABLE OF AUTHORITIES

Page(s)

CASES

Butts v. Curtis Publ’g Co., 225 F. Supp. 916 (D. Ga. 1964), aff’d, 351 F.2d 702 (5th Cir. 1965), aff’d 87 S. Ct. 1975, 388 U.S. 130 (1967) ...............................................................................................5

Camarillo v. McCarthy, 998 F. 2d 638 (9th Cir. 1993) ....................................................................................................4

Carnite v. Granada Hosp. Group. Inc., 175 F.R.D. 439 (W.D.N.Y. 1997) ..............................................................................................7

Cenutry Indem Co. v. Marine Group, LLC, 848 F. Supp. 2d 1238 (D. Oregon 2012) ..........................................................................4

Gonzales v. Raich, 545 U.S. 1 (2005) .......................................................................................................................9

Holland v. Cardiff Coal, 991 F. Supp. 508 (S.D. West Virginia 1997) .....................................................................2, 3, 5

Kewanee Oil & Gas Co. v. Mosshamer, 58 F.2d 711 ................................................................................................................................5

Laskowski v. Liberty Mutual (N.D.N.Y 2013) .........................................................................................................................6

Lincoln v. Potter, 418 F. Supp. 2d 443 (S.D.N.Y.2006).........................................................................................7

Parker v. Columbia Pictures Industries, 204 F 3d 326 (2d Cir. 2000) (District Court did not abuse its discretion in denying Plaintiff employee’s motion to amend complaint to add new claims when he had all information he needed) ....................................................................................8

Torres v. Puerto Rico, 485 F. 3d 5 (1st Cir. 2007) .........................................................................................................7

U.S. v. Amawi, 541 F. Supp.2d 945 (N.D.O 2008) ...........................................................................................19

U.S. v Ballinger, 395 F 3d at 1225-26 & n. 3 ............................................................................................9, 11, 18


TABLE OF AUTHORITIES (Continued)

Page(s)

iii

U.S. v. Cromite, 727 F. 3d 194 (2d Cir. 2013)....................................................................................................15

U.S. v. Grassie, 237 F. 3d 1119 (10th Cir. 2001) ........................................................................................12, 17

U.S. v. Snyder, 1995 WL 724529 (E.D.N.Y. July 26, 1995) ..............................................................................4

United States v. Cobb, 144 F. 3d 319 (4th Cir. 1998) ....................................................................................................9

United States v. Doggart, 2017 WL 2416920 (EDNY 2017)............................................................................................19

United States v. Gallimore 247 F.3d 134 (4th Cir. 2001) ...................................................................................................21

United States v. Goodale, 831 F. Supp. 2d 804 .................................................................................................................20

United States v. Lopez, 514 U.S. 459 (1995) ......................................................................................................... passim

United States v. Mandel, 647 F. 3d 710 (7th Cir. 2011) ..................................................................................................10

United States v. Morrison, 529 U.S. 598 (2002) .......................................................................................................9, 10, 11

United States v. Nathan, 202 F.3d 230 (4th Cir. 2000) ...................................................................................................11

United States v. Ochoa, 2009 WL 3878520 (D.N.M. Nov. 2009) ...................................................................................9

United States v. Odom, 252 F. 3d 1289 (11th Cir. 2001) ..............................................................................................17

United States v. Photogrammetric Data Servs. Inc. 259 F. 3d 229 (4th Cir. 2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36 (2004) ................................................................................................9



Page(s)

iv

United States v. Roof, D.S.C. 2016, 225 F. Supp. 3d 438 ...........................................................................................18

United States v. Runyon, 707 F. 3d 475 (4th Cir. 2013) ....................................................................................................9

United States v. Sherman 797 F. Supp. 2d 709 .................................................................................................................20

United States v. Vanderhorst, 2 F. Supp. 3d 792 (D.S.C. 2014) ..............................................................................................20

Venters v. City of Delphi, 123 F. 3d 956 (7th Cir. 1997) ....................................................................................................5

Washington State Grange v. Washington State Republican Party, 522 U.S. 442 (2008) .................................................................................................................10

Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976)..........................................................................................5

STATUTES

18 U.S.C. § 247 ..................................................................................................................11, 12, 17

18 U.S.C. § 247(a)(1) .........................................................................................................12, 13, 22

18 U.S.C. § 248(a)(2) ............................................................................................................. passim

1994 U.S.C.C. ................................................................................................................................11

Pub. L. No 104-155, § 2, 110 Stat. 1392 (1996) ......................................................................12, 22

Southern Poverty Law....................................................................................................................16

OTHER AUTHORITIES

142 Cong. Rec. S7908-04 ..............................................................................................................12

1994 U.S.C.C.A.N. 699 .................................................................................................................11

Wright & Miller, 6A Fed. Prac. & Proc. Civ. § 1522.2 (3d ed.) ......................................................7



Page(s)

v

“Violence against Houses of Religion,” 133 Cong. Rec. S4015-01 (March 26 1987) ........................................................................................................................................18

ADL, “Funding Hate: How White Supremacists Raise Their Money,” available at https://www.adl.org/resources/reports/funding-hate-how-white-supremacists-raise-their-money#organizational-funding ..............................................................................16

110 Am. Soc’y Int’l L. Proc. 350, American Society of International Law Proceedings (March 30-April 2, 2016) ....................................................................................19

America’s Largest Churches. John Wiley & Sons at p. 13 ............................................................14

Beirich, Heidi. 2014. “White Homicide Worldwide.” ...................................................................16

Brian J. Grim and Melissa E. Grim, The Socio-economic Contribution of Religion to American Society: An Empirical Analysis ...........................................................................13

Butt, Yousaf, “How Saudi Wahhabism Is the Fountainhead of Islamist Terrorism,” ...............................................................................................................................14

Center. 2012. “Racist Skinheads: Understanding the Threat.” ......................................................16

Chuin-Wei Yap, In China’s Alleyways, Underground Banks Move Money, WSJ Online, October 27, 2015, https://www.wsj.com/articles/in-chinas-alleyways-underground-banks-move-money-1445911877?mod=e2tw (last visited May 14, 2018) ..................................................................................................................................21

Cong. Rep. 103-488, H.R. Conf. Rep. No. 488, 103RD Cong., 2ND Sess. 1994 .........................11

December 5, 2010 available at https://www.theguardian.com/world/us-embassy-cables-documents/242073 ........................................................................................................15

5 Fed. Prac. & Proc. Civ. 3d § 1271, n.24 (2004)............................................................................5

Fed. R. Civ. P. 8(c) ..........................................................................................................................2

Fed. R. Civ. P. 16(b) ....................................................................................................................2, 6

Financial Action Task Force. “Financing of Recruitment for Terrorist Purposes.” (2018) available at http://www.fatf-gafi.org/media/fatf/documents/reports/Financing-Recruitment-for-Terrorism.pdf ...........................................................................................................................15

H.R. Rep. 103-306, H. R. Rep. No. 306, 103RD Cong., 1st Sess. (1993) .....................................11



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vi

http://www.fxj.hunan.gov.cn/Article/UploadFiles/201112/2011120112130498.doc ................................................................................................................................................21

Huffington Post (January 21, 2015), available at https://www.huffingtonpost.com/dr-yousaf-butt-/saudi-wahhabism-islam-terrorism_b_6501916.html.......................................................................................................14

Independent (March 2015), available at https://www.independent.co.uk/news/world/americas/us-mosques-threats-double-islamophobia-threats-vandalism-2017-cair-american-islamic-relations-a7631581.html .........................................................................................................................18

Joint Statement of Floor Managers Regarding H.R.3525.14 .........................................................17

July 23, 2013 at URL: https://www.heritage.org/terrorism/report/60-terrorist-plots-911-continued-lessons-domestic-counterterrorism .........................................................19

Report, no. 154. https://www.splcenter.org/20140331/white-homicide-worldwide .....................16

U.S. Const. art. I. § 8........................................................................................................................8


1

I. INTRODUCTION

The constitutional defense Defendants NOW raise more than two years after they filed

their initial answers, AND AFTER HAVING SUFFERED AN ADVERSE DECISION ON

THEIR SUMMARY JUDGMENT MOTION, is FUTILE, untimely and substantially prejudicial

to Plaintiffs. Defendants waited to raise this defense until long after discovery closed, AND

AFTER SUMMARY JUDGMENT HAD BEEN DECIDED, EFFECTIVELY precluding

Plaintiffs from taking discovery on matters that are relevant to presenting fact specific arguments

against Defendants’ defense. Defendants’ lack of diligence, inattentiveness and neglect IS FAR

FROM MINOR AND CERTAINLY NOT EXCUSABLE BY ANYTHING THEY HAVE

OFFERED OR COULD OFFER TO SUPPORT SUCH A LAST MINUTE AND DESPARATE

ATTEMPT TO AVOID A TRIAL ON THE MERITS. THE COMPLAINT IN THIS CASE

CLEARLY PLED A CLAIM UNDER SECTION 248. THERE IS SIMPLY NO REASON,

INDEED NONE IS OFFERED, AS TO WHY DEFENDANTS COULD NOT HAVE

CHALLENGED THE CONSTITUTIONALITY OF THE STATUTE THREE YEARS AGO.

RATHER THAN OFFER ANY JUSTIFICATION FOR THEIR INEXCUSABLE DELAY,

DEFENDANTS CAN ONLY MUSTER A WEAK AND ILLOGICAL ARGUMENT THAT

THEIR INEXCUSABLE DELAY IN SEEKING TO AMEND THE COMPLAINT, OR

GETTING A FOURTH BITE OF THE APPLE, WOULD NOT PREJUDICE THE

PLAINTIFFS IN ANY WAY. THE COURT SHOULD NOT COUNTENANCE SUCH

GAMESMANSHIP AND, FOR these and OTHER reasons SET FORTH BELOW, SHOULD

RESPECTFULLY DENY DEFENDANTS’ FOURTH AND WHOLLY UNTIMELY MOTION

TO AMEND THEIR ANSWER TO NOW ASSERT A CONSTITUIONAL CHALLENGE TO

SECTION 248.


2

II. DEFENDANTS’ MOTION TO AMEND IS UNTIMELY AND PREJUDICIAL

Defendants raised a constitutional defense in a letter/motion filed with this Court two

years after filing their initial answers, when the defense should have been raised, and well after

the close discovery and of the filing of summary judgment motions and not until after the

recently conducted hearing on the motions for summary judgment, which led to the Court’s

extensive opinion denying in part and granting in part the parties’ motions. See, e.g., ECF No.

150. In their request to move forward on their belated constitutionality argument, which lacks

merit, Defendants have misconstrued Rule 8(c) of the Federal Rules of Civil Procedure;

mischaracterized the factual record as irrelevant to a determination of this matter, which it is not;

ignored Rule 16(b) of the Federal Rules, which controls the Court’s determination; and

references case law that is irrelevant to the issue.

A. Rule 8(c) of the Federal Rules

First, Defendants misconstrue Rule 8(c) of the Federal Rules of Civil Procedure. Contrary

to Defendants’ assertions in their submissions, see, e.g., Defendants’ Opposition/Response to

Plaintiffs’ Motion re Unconstitutionality of FACEA at 1-4, ECF No. 168, Rule 8(c) states that a

party shall set forth affirmative defenses in their answer to a complaint. Failure to set forth an

affirmative defense in a defendant’s responsive pleading generally results in a waiver of the

defense. Holland v. Cardiff Coal, 991 F. Supp. 508, 515 (S.D. West Virginia 1997) (citing Allied

Chemical Corp. v. Mackay, 695 F. 2d 854, 855 (5th Cir. 1983)).

In Holland v. Cardiff Coal Company, 991 F. Supp. at 515-516, the court concluded that

Defendants’ belated assertion of a constitutional defense unfairly surprised the plaintiffs; indeed,

by the time Defendants raised the defense, discovery had already ended. “By waiting to raise

this defense until after the discovery period closed in this matter, the plaintiffs were precluded

from taking discovery on matters that are relevant to presenting fact specific arguments against


3

[Defendants’] … Defense.” Id. at 516. In addition, the Defendant provided no reasons in

support of its delay. Id.

Here, Defendants failed to raise this defense for over three years after Plaintiffs filed their

March 5, 2015 complaint, over two years after Defendants first sought leave to file their answers,

see ECF No. 10, and a full two years after they actually filed their April 2016 answers, see ECF

No. 42, 43. Defendants did not raise the defense in either of their 1st or 2nd Amended Answers,

filed respectively in June 2016, ECF No. 52, 53 and September 2016, see ECF. No. 70, 71. To

conclude that Defendants had ample time to research available defenses to Plaintiffs’ claims,

including their 18 U.S.C. § 248(a)(2) claim, is beyond question. As in Holland, Defendants have

offered no explanation for their extensive delay.

Moreover, as in Holland, Defendants waited to raise this defense until long after

discovery closed, precluding Plaintiffs from taking discovery on matters that are relevant to

presenting fact specific arguments against Defendants’ defense. These matters include but are

not limited to the financial nature of the Defendant CACWA operations, e.g., the extent to which

CACWA activities have been funded by donors from out-of-state or abroad; the extent to which

outside money has been used to fund this litigation by the defendants; the number of people

CACWA has employed or paid per diem; the identity of persons and entities that have donated or

provided funds to support CACWA activities, including foreign banks and/or wire services,

Beijing based anti-Falun Gong organizations, and other “CACAs.” It would also be relevant to

learn more about Defendants’ use of foreign websites to support their anti-Falun Gong activities

including, e.g., the Kaiwind.org website that is run by the Office 6-10; their use of the Internet,

cell and telephones and email to recruit and/or train volunteers. Had Defendants raised its

affirmative defense in a timely manner, Plaintiffs would have inquired as to these and other


4

relevant matters during discovery. It appears, given that Defendants have had the same counsel

for the past several years, that waiting to raise this defense was strategic to avoid relevant

discovery on how Defendant CACWA is funded and supported, particularly by the Chinese

Communist Party and/or other international organizations.

The Defendants’ heavy reliance on U.S. v. Snyder, 1995 WL 724529, at 11-12 (E.D.N.Y.

July 26, 1995), is misplaced. See, e.g., Defendants’ Opposition/Response to Plaintiffs’ Motion re

Unconstitutionality of FACEA (“May 2018 Opp./Resp.”) at 2, ECF No. 168. In Snyder, the

affirmative defense was included in defendants’ second amended answer prior to motions for

summary judgment. Id. at *12. The Snyder plaintiffs had a full and fair opportunity to address

the defense in their brief in opposition to defendants’ summary judgment motion. Id. Moreover,

insofar as the defendant in Snyder was not precluded from raising the defense on its motion for

summary judgment, the issue was deemed moot. Id. Here, Defendants did not plead the

affirmative defense until years of discovery were conducted, well after summary judgment

motions were briefed, and after this Court conducted a lengthy hearing and issued an extensive

opinion on those motions. As a result, unlike the plaintiffs in Snyder, Plaintiffs here have not had

a full and fair opportunity to address the defense in their opposition to Defendants’ motion for

summary judgment.

As Defendants concede, “it is only in the absence of a showing of prejudice, … [that] an

affirmative defense may be raised for the first time in summary judgment.” Camarillo v.

McCarthy, 998 F. 2d 638, 639 (9th Cir. 1993). See also Cenutry Indem Co. v. Marine Group,

LLC, 848 F. Supp. 2d 1238, 1262 (D. Oregon 2012) (cited aptly by Defendants for the same

proposition). Contrary to Defendants contention that there is no prejudice to Plaintiffs, Plaintiffs

would be prejudiced if the Court were to give Defendants a fourth bite at the apple. At this late


5

stage of the proceeding, Plaintiffs would need to re-open discovery in order to adduce facts that

support constitutionality, but to do so would require Plaintiffs to expend additional resources to

conduct depositions and prepare for trial. It would pose enormous scheduling challenges, and

more generally, unfair surprise. Coupled with the posture of the case, that is, that the amendment

comes on the eve when the filing of pre-trial motions are due and could result in new problems

of proof, and the costs Plaintiffs have already incurred due to Defendants’ many amended

pleadings, Plaintiffs submit that the prejudice they would incur is substantial.

Defendants’ arguments that they were not required to raise the constitutionality challenge

in their answer are also misplaced. Courts and commentators have concluded that

unconstitutionality is an affirmative defense. 5 Fed. Prac. & Proc. Civ. 3d § 1271, n.24 (2004);

Butts v. Curtis Publ’g Co., 225 F. Supp. 916, 920 (D. Ga. 1964), aff’d, 351 F.2d 702 (5th Cir.

1965), aff’d 87 S. Ct. 1975, 388 U.S. 130 (1967) (holding that a statute’s unconstitutionality is an

affirmative defense and must be so pleaded in defendant’s answer); Kewanee Oil & Gas Co. v.

Mosshamer, 58 F.2d 711, 712 (10th Cir. 1932 (Because Defendant failed to plead these

affirmative defenses, they are waived). See also Venters v. City of Delphi, 123 F. 3d 956, 968

(7th Cir. 1997). As such, Defendants were required to plead it in their answers, but they did not.

Defendants rely exclusively on a state court case from another jurisdiction for the

opposite proposition. See Williams v. Paxton, 98 Idaho 155, n. 1 559 P.2d 1123 (1976).

However, that court based its determination on factors that are not relevant herein, that is, that

the “constitutionality of a statue is not ordinarily an issue upon which evidence must be

presented at trial or about which one must be forewarned in order to prepare evidence for trial,”

see id. Here, as in Holland, there are fact specific arguments against Defendants’ defense and

Plaintiffs should have been alerted as to afford them an opportunity to present evidence to meet


6

raise and develop these argument.

B. Rule 16(b) of the Federal Rules

In addition, as the record makes clear, this Court has already modified several scheduling

orders to accommodate Defendants’ several requests to late file their pleadings. On March 25,

2015, the Court limited the deadline for the Defendants’ late filing of an answer to April 30,

2015. See ECF No. 10. On March 31, 2016, the Court granted Defendants’ request to modify the

earlier order and permit Defendants to late-file their initial answers, on a date no later than April

11, 2016. See ECF No. 41. On April 21, 2016, this Court issued another scheduling order

stating: “NO extensions except in exigent circumstances.” Nonetheless, the Defendants late-

filed another set of answers on June 1, 2016 without objection from Plaintiffs who understood

that this would be Defendants’ final set of answers. However, Defendants further protracted the

litigation by seeking leave to amend and correct the answers they filed in June 2016. See ECF

No. 55. Now, well over two years after the Court issued its “no extension” order, Defendants

seek another extension and modification of the Court’s “no extension” scheduling order.

Moreover, since Defendants fail to address how they might accommodate additional deposition

discovery related to their new and belatedly raised defense without seeking a modification of the

Court’s discovery scheduling order, they impliedly seek to modify the Court’s discovery

scheduling, requiring that the parties complete fact discovery by August 3, 2016 and expert

discovery by October 31, 2016. See ECF No. 45.

Rule 16 (b) of the Federal Rules of Civil Procedure provides that scheduling orders “may

be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16 (b) (4). “To

satisfy the good cause standard, ‘the party must show that, despite its having exercised diligence,

the applicable deadline could not be met.’” See 2013 WL 5127039 Laskowski v. Liberty Mutual

(N.D.N.Y 2013) (quoting Enzymotec Ltd. V. NBTY, Inc., 754 F. Supp. 2d 527, 536 (E.D.N.Y.


7

2010). See also Wright & Miller, 6A Fed. Prac. & Proc. Civ. § 1522.2 (3d ed.) (citing Holmes v.

Brubman, 568 F. 3d 329 (2d Cir. 2009)). Here, Defendants have been less than assiduous,

attentive, or diligent in pursing their defense. As noted, Defendants failed to raise this defense

for more than two years after Defendants first sought leave to file their answers and not before

summary judgment motions were fully briefed, heard, and decided. Surely the Defendants have

had sufficient time to research available defenses to Plaintiffs’ claims. Given how extensively

Defendants have argued, briefed, and addressed every other aspect of this case, it strains

credulity to believe that Defendants did not identify this defense years ago and chose, for

strategic reasons, to wait to raise it.

Good cause has been found lacking in relevant contexts such as: 1) where there has been

attorney neglect or inadvertence, Carnite v. Granada Hosp. Group. Inc., 175 F.R.D. 439

(W.D.N.Y. 1997) (“Attorney inadvertence does not constitute good cause for amending the

pleadings after the date specified in the scheduling order”); 2) where the party seeking relief has

failed to explain satisfactorily delays that led to the need for modification, Lincoln v. Potter, 418

F. Supp. 2d 443 (S.D.N.Y.2006) (Letter carrier could not belatedly amend an age-discrimination

complaint against the United States Postal Service to allege a hostile work environment, when

the facts underlying this claim were known to him at the time the action was filed, the alleged

harassment, if any, began well before the deadline for amendments in the court’s scheduling

order, and the letter carrier did not explain why the deadline set forth in the court’s scheduling

order could not have been reasonably met. ); 3) where Courts previous extensions already have

been granted, Torres v. Puerto Rico, 485 F. 3d 5 (1st Cir. 2007) (The district court did not abuse

its discretion in denying as untimely the government defendants’ motion which was filed 11

weeks after a court-imposed deadline that already had been previously extended where the court


8

had stated that no further extensions would be granted); and 4) whether the opposing party would

be prejudiced by the proposed modification, Parker v. Columbia Pictures Industries, 204 F 3d

326 (2d Cir. 2000) (District Court did not abuse its discretion in denying Plaintiff employee’s

motion to amend complaint to add new claims when he had all information he needed).

These factors also militate in favor of a denial of the Defendants’ request to add this

defense at this stage of the case. First, Defendants’ failure to plead the defense previously can

only be attributed to negligence (or intentional avoidance), which as noted above does not meet

the “good cause” standard. Second, the Defendants fail to explain the reason for their delay.

Attorneys of their experience and stature should not be permitted to file four amended answers in

order to assert an affirmative defense without a single explanation. The defense should have

been apparent to Defendants from the face of Plaintiffs’ complaint and Defendants’ failure to

plead it prior to the close of discovery and raising it for the first time now is an undue delay they

have yet to explain. Third, to give Defendants a fourth bite at the apple, at this late stage of the

proceeding, would no doubt be unfairly prejudicial to Plaintiff for all of the reasons observed

supra at § I. (1).

III. 18 U.S.C. § 248(A)(2) IS A CONSTITUTIONAL EXERCISE OF CONGRESSIONAL POWER

The Commerce Clause provides Congress with power “[t]o regulate Commerce with

Foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I. §

8. The Necessary and Proper Clause provides Congress with power “[t]o make all Laws shall be

necessary and proper for carrying into Execution the foregoing Powers,” which include the

Commerce Clause. Id.

The Supreme Court has “identified three broad categories of activity that Congress may

regulate under its commerce power.” United States v. Lopez, 514 U.S. 459, 558 (1995). First,


9

Congress may regulate the use of the channels of interstate commerce. Id. Channels of interstate

commerce are the “interstate transportation routes through which persons and goods move.”

United States v. Morrison, 529 U.S. 598, 613 n.5 (2002). Second, “Congress is empowered to

regulate and protect the instrumentalities of interstate commerce, or persons or things in

interstate commerce.” Lopez, 514 U.S. at 558. These include highways, interstate roads, and

tolls roads connecting interstate roads, the Internet and telephone systems, as well as the objects

that actually move through interstate commerce. See United States v. Cobb, 144 F. 3d 319, 322

(4th Cir. 1998); United States v. Runyon, 707 F. 3d 475, 489-90 (4th Cir. 2013); United States v.

Ochoa, 2009 WL 3878520, *3 (D.N.M. Nov. 2009); see also U.S. v Ballinger, 395 F 3d at 1225-

26 & n. 3. Third, “Congress’s commerce authority includes the power to regulate those activities

… that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59. This power can be

“expansive” and authorizes federal regulation of “seemingly local matters.” Nat’l Fed. of Indep.

Bus. 132 S. Ct. at 2578-79.

Under the third category of Congress’s Commerce Clause authority, a court “need not

determine whether respondents’ activities, taken in the aggregate, substantially affect interstate

commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Gonzales v.

Raich, 545 U.S. 1, 22 (2005) (emphasis added). Moreover, the Supreme Court has made clear

that Congress is authorized to regulate the first two Lopez categories of commerce, “even though

the threat may come from only intrastate activities. Lopez, 514 U.S. at 558. This is so because

“when Congress regulates activity based upon its power to regulate channels and

instrumentalities of interstate commerce federal jurisdiction is supplied by the nature of the

instrumentality or facility used, not by separate proof of interstate movement.” United States v.

Photogrammetric Data Servs. Inc. 259 F. 3d 229, 250 (4th Cir. 2001), abrogated on other


10

grounds by Crawford v. Washington, 541 U.S. 36, 63 (2004) (internal quotations omitted); see

also United States v. Mandel, 647 F. 3d 710, 722 (7th Cir. 2011).

A. Section 248 (a) (2) is a Valid Exercise of Congress’ Power to Regulate Conduct that Substantially Affects Interstate Commerce

A facial challenge to a congressional act is, of course, difficult to mount successfully.

This is because such a challenge would run contrary to “the fundamental principle of judicial

restraint that courts should neither anticipate a question of constitutional law in advance of the

necessity of deciding it nor formulate a rule of constitutional law broader than is required by the

precise facts to which it is to be applied.” Washington State Grange v. Washington State

Republican Party, 522 U.S. 442, 450 (2008). Thus, the proponent of a facial challenge must

establish that no set of circumstances exists under which the Act would be valid. Id. at 449

(quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Defendants’ facial challenge to §

248 requires them to establish that under no circumstances could an attack on a place of

worship, as that term has been defined by this Court, and its congregants substantially affect

interstate commerce. That is a near impossible burden. Congress has made extensive findings

regarding the impact of church-related violence on interstate commerce; the regulated activity is

often commercial in nature; and the link between the attenuated activity and interstate commerce

is rarely attenuated.

The Supreme Court has identified four factors that are relevant to a court’s consideration

of whether Congress had a rational basis to conclude that a regulated activity substantially affects

interstate commerce. Morrison, 529 U.S. at 610-12. These factors are (1) whether Congress

made findings regarding the regulated activity’s impact on interstate commerce; (2) whether the

statute contains an “express jurisdictional element”; (3) whether the regulated activity is

commercial/economic in nature; and (4) whether the link between the prohibited activity and the


11

effect on interstate commerce is attenuated. Id.1 As noted below, FACEA meets the 1st, 3rd,

and 4th prongs of this standard.

1. Congressional Findings

While the Court in Lopez acknowledged, “Congress normally is not required to make

formal findings as to the substantial burdens that an activity has on interstate commerce,” it

explained that such findings “would enable us to evaluate the legislative judgment that the

activity in question substantially affected interstate commerce.” 514 U.S. at 562-63. Herein the

formal findings are clear: church related violence routinely burdens interstate commerce.

Subsection 248(a)(2) is modeled generally on 18 U.S.C. § 247, which prohibits

intentional damage or destruction of property because of the religious character of that property.

See H.R. Rep. 103-306, H. R. Rep. No. 306, 103RD Cong., 1st Sess. (1993) WL 465093, 1994

U.S.C.C.A.N. 699 (Legis. Hist.).2 It is therefore relevant to note that Congress amended § 247

“in response to a national epidemic of burnings of predominantly African-American churches,

particularly in the southeastern United States.” U.S. v. Ballinger, 395 F. 3d 1218, 1239 (11th Cir.

2005). The congressional findings discussed by the 11th Circuit identify specific ways in which

attacks on churches affect interstate commerce and the resulting impact on the services provided

by those places of worship. Id:

As the record makes clear, the churches, synagogues, and mosques that have been the targets of arson and vandalism, serve many purposes. On Saturdays or

1 Importantly, this test applies only to the third Lopez category and does not apply where

Congress acts pursuant to its plenary power to regulate the channels, instrumentalities, or goods involved in interstate commerce. See Morrison, 529 U.S. at 609, 618; United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000) (holding substantially affects does not apply where Congress exercises authority under Lopez 1 and 2 authority).

2 See also H.R. Cong. Rep. 103-488, H.R. Conf. Rep. No. 488, 103RD Cong., 2ND Sess. 1994, 1994 WL 168882, 1994 U.S.C.C.A.C. 724 (Legis. Hist.) (“This provision, [that is, § 248 (a)(2)], much like the one found at § 247, is a reflection of the profound concern of the Congress over private intrusions on religious worship and the judgment of the Congress that the exercise of the right to religious liberty deserves federal protection.


12

Sundays, they are places of worship. During the rest of the week, they are centers of activity. A wide array of social services, such as inoculations, day care, aid to the homeless, are performed at these places of worship. People often register to vote, and vote at the neighborhood church or synagogue. Activities that attract people from a regional, interstate area often take place at these places of worship. There is ample evidence to establish that Congress is regulating an activity that has a “substantial effect” upon interstate commerce. 142 Cong. Rec. S6517-04, S6522 (1966) (Sen. Kennedy).

See also 142 Cong. Rec. S7908-04, S7908 (“[A] number of places of worship provide day care

services, or a variety of other social services.”); id. at S7909 (statement of floor managers); Pub.

L. No 104-155, § 2, 110 Stat. 1392 (1996) (additional findings); U.S. v. Grassie, 237 F. 3d 1119,

1209 (10th Cir. 2001). In its discussion of the legislative history of § 247, the Court said:

To the extent the legislative history is informative on the specific impact of church attacks on interstate commerce, there are references to a broad range of activities in which churches engage, including social services, educational and religious activities, the purchase and distribution of goods and services, civil participation, and the collection and distribution of funds for these and other activities across state lines. See, e.g., 142 Cong. Rec. S7908–04 at *S7909 (1996) (joint statement of floor managers regarding H.R. 3525, The Church Arson Prevention Act of 1996); 142 Cong. Rec. S6517–04, *S6522 (1996) (statement of Sen. Kennedy); see also “Church Burnings: Hearings on the Federal Response to Recent Incidents of Church Burnings in Predominantly Black Churches Across the South Before the Senate Comm. on the Judiciary,”104th Cong., 37 (1996) (appendix to the prepared statement of James E. Johnson and Deval L. Patrick).

There is little merit to the argument that these legislative findings relate solely to attacks

on the real property of places of worship under § 247 (a) (1), and thus do not provide support for

248 (a) (2) that penalize attacks on the congregants who use those places of worship when

exercising their religious beliefs. There is no rational justification for distinguishing between

attacks that interfere with the exercise of religious beliefs and attacks on the places in which

those beliefs are exercised. The interstate activities identified by Congress involve social and

commercial activities, which are conducted by people, not the buildings in which they exercise

their religious beliefs. Attacking people at a place of worship disrupts those same activities.

Moreover, the effect of an attack on a house of worship cannot easily be divorced from the effect


13

it has on the ability of its members to practice their religion there. In fact, many of the attacks

that may be prosecuted criminally under § 247(a)(1) may also be charged in civil cases under §

248(a)(2) because of the effect attacking a place of worship has on its members' ability to

exercise their religious beliefs. If Congress may criminalize attacks on a place of worship under

§ 247(a)(1), it may enact laws penalizing the obstruction of the exercise of religious belief that

flows from attacks on worshippers in their place of worship under § 248(a)(2). Moreover, as the

Court observed in its decision on summary judgment, to carve out a distinction that protects the

orthodox expression of religious beliefs and not the unorthodox would be to impermissibly favor

one religion over another.

2. Whether the regulated activity is commercial or economic in nature

Religion contributes enormously to interstate commerce. In 2016, the Interdisciplinary

Journal of Research on Religion, a peer-reviewed journal published by the Institute for Studies of

Religion at Baylor University, published an article providing the “first documented quantitative

national estimates of the economic value of religion to U.S. society.” Brian J. Grim and Melissa

E. Grim, The Socio-economic Contribution of Religion to American Society: An Empirical

Analysis, INTERDISC. J. OF RES. ON RELIGION, Vol. 12 (2016), Art. 3, at 2, available

at http://www.religjournal.com/pdf/ijrr12003.pdf. “The study’s most conservative estimate,

which takes into account only the revenues of faith-based organizations, is $378 billion annually

– or more than a third of a trillion dollars. By way of economic perspective, this is more than the

global annual revenues of tech giants Apple and Microsoft combined.” Id. at 2 (emphasis in

original).

Our second mid-range estimate attempts to correct for this in two ways: by providing an estimate of the fair market value of goods and services provided by religious organizations, and by including the contribution of businesses with religious roots. This mid-range estimate puts the value of religion to U.S. society at over $1 trillion annually. Our third, higher-end estimate recognizes that people


14

of faith conduct their affairs to some extent (however imperfectly) inspired and guided by their faith ideals. This higher-end estimate is based on the household incomes of religiously affiliated Americans and places the value of faith to U.S. society at $4.8 trillion annually, or the equivalent of nearly a third of America’s gross domestic product (GDP).

Id.3

While church-related acts of violence are not necessarily commercial in nature, they

impact a tremendous commercial activity and where they are carried out as paid-for services,

they are no less commercial than the sale or purchase of a good. The numerous documented

instances of extremist groups funding violence against places of worship from outside the

jurisdiction where the violence takes place are therefore relevant to this inquiry. A salient

example of this is Wahhabism, the Saudi-funded fundamentalist Islamic movement that has been

described as “the fountainhead of Islamic extremism.”4 As then-secretary of state Hillary

Clinton observed, donors in Saudi Arabia were the largest source of funding to international

3 Christian mega-churches with attendance of thousands at service have long been intertwined

in commercial, marketing, and branding practices illustrate this point well. According to a 2005 survey, the average annual income from a mega church in the United States was $6 million, compared to $4.8 million five years previously. Thumma, Scott, and Dave Travis. 2007. Beyond Megachurch Myths: What We Can Learn from America’s Largest Churches. John Wiley & Sons at p. 13. Religious congregations add $418 annually to the U.S. economy, employ staff in the hundreds of thousands, and spend $84 billion on their operations annually, including costs of personnel and goods and services. “Religion May Be Bigger Business than We Thought. Here’s Why.” n.d. World Economic Forum. Accessed May 3, 2018. Mega churches are “massive corporate structures rarely limited to their church facility and often include a television or radio network, publishing house, internet ministry, and… multiple physical locations.” Hinton, Mary. 2011. The Commercial Church: Black Churches and the New Religious Marketplace in America. Lexington Books at p. 147. Many churches have multiple income streams, the most salient being tithes and financial gifts from congregants. Surveys indicate that nearly 50% of attendees in some cases give 10% or more of their income to their church. Thumma, Scott, and Dave Travis. 2007. Beyond Megachurch Myths: What We Can Learn from America’s Largest Churches. John Wiley & Sons at p. 107

4 See Butt, Yousaf, “How Saudi Wahhabism Is the Fountainhead of Islamist Terrorism,” Huffington Post (January 21, 2015), available at https://www.huffingtonpost.com/dr-yousaf-butt-/saudi-wahhabism-islam-terrorism_b_6501916.html.


15

Sunni terrorist groups.5 According to another source, see, i.e., “Financing of Terrorist

Recruitment,” the funding of terrorist recruitment, recruiters do not merely provide training but

also expend funds to facilitate the new recruits’ early participation in the organization (e.g.,

travel, accommodation costs or payments).6 Isil, for example, has provided financial assistance

to terrorist recruits in the form of false passports to enable them to travel to Syria, funds for

travel, and purchase of bus tickets.7 Recruiters have also wired money through a remitter

without the opening of a bank account.8 The use of foreign NGOs, NPOs and even Facebook to

fund such activities is also not uncommon.9 Indeed, the foreign funding of terrorist attacks on

synagogues and other U.S. sites is so commonplace that the confidential U.S. informants may

offer funds to home grown U.S. terrorists to carry out domestic terrorist attacks. For example, in

the U.S. v. Cromite, 727 F. 3d 194, 221 (2d Cir. 2013), the U.S. government informant offered to

pay defendant $200,000.00 to carry out domestic terrorism involving two synagogues.

Relevantly, the Second Circuit found this amount to be an amount plausibly required to purchase

the services of a person willing to recruit and launch missiles at a military base and bomb

synagogues. Id.

Many domestic extremists group, most notably white power activists, who advocate

violence against blacks and Jews among others, operate across state lines. Neo-Nazi groups that

have committed vandalism and violence on grounds of religion (including vandalism of

5 See The Guardian. 2010. “US Embassy Cables: Hillary Clinton Says Saudi Arabia ‘a

Critical Source of Terrorist Funding,’” December 5, 2010 available at https://www.theguardian.com/world/us-embassy-cables-documents/242073

6 The Financial Action Task Force. “Financing of Recruitment for Terrorist Purposes.” (2018) available at http://www.fatf-gafi.org/media/fatf/documents/reports/Financing-Recruitment-for-Terrorism.pdf

7 See id. at 8-9. 8 Id. at 9. 9 Id. at 12-13.


16

synagogues) have attained a national scale.10 Aryan activists associated with the Ku Klux Klan,

the White Patriot Party, and the neo-Nazi National Socialist Party has committed murders in

various states. This includes Frazier Miller’s murder of a 14-year-old boy and grandfather

outside a Jewish community center in Kansas City on the eve of Passover in 2014 and Wade

Page’s murder of six Sikh temple members in Milwaukee in 2013.11 Stormfront.org, an

organization described by the Southern Poverty Law Center as the “largest hate site in the world”

and “a magnet and breeding ground for the deadly and deranged,” has been disproportionately

responsible for major killings, including the murder of six people at a Sikh temple in Wisconsin

in 2012 and three people at a Jewish Center in 2014.12 According the Anti-Defamation League,

Stormfront, run by former Ku Klux Klan leader Don Black, is perhaps the most successful white

supremacist entity in terms of donations, which likely fund part of the costs of their temple-

related attacks.13

3. Whether the link between the prohibited activity and the effect on interstate commerce is attenuated

Section 248 also satisfies this factor in two significant ways: first it prohibits conduct that

interferes with interstate activity; and second, the Defendants’ conduct is carried out across state

lines through an infrastructure that supports and affects interstate commerce.

10 Southern Poverty Law Center. 2012. “Racist Skinheads: Understanding the Threat.” Law

Enforcement Special Report. 11 Simi, Pete, and Robert Futrell. 2015. American Swastika: Inside the White Power

Movement’s Hidden Spaces of Hate. Rowman & Littlefield at 1. 12 Beirich, Heidi. 2014. “White Homicide Worldwide.” Intelligence Report, no. 154.

https://www.splcenter.org/20140331/white-homicide-worldwide. 13 See ADL, “Funding Hate: How White Supremacists Raise Their Money,” available at

https://www.adl.org/resources/reports/funding-hate-how-white-supremacists-raise-their-money#organizational-funding.


17

a. FACEA prohibits conduct that interferes with interstate activity

First, the violent/threatening conduct that is subjected to FACEA interferes with interstate

commerce at places of worship. In the United States v. Grassie, 237 F. 3d 1119, 1209-10 (10th

Cir. 2001), the Court noted that churches are often “major participants in interstate commerce for

goods and services, use of interstate communications and transportations, raising and distributing

revenues (including voluntary revenues) interstate and so on.” (citing 142 Cong. Rec. S7908-04

at *S7909 (daily ed. July 16, 1996) (Joint Statement of Floor Managers Regarding

H.R.3525.1414 In the United States v. Odom, 252 F. 3d 1289, 1291 (11th Cir. 2001), the

eleventh circuit similarly noted that while “churches are not commonly considered business

enterprises, it concluded that they nevertheless “can and do engage in commerce.” Id. at 1289.

As the Court held:

The business or commerce of a church involves the solicitation and receipt of donations, and the provision of spiritual, social, community, educational (religious or non-religious) and other charitable services.... In general, churches engage in activities and provide services to their members, to their community and to the public at large; churches solicit contributions to provide these services; and they purchase goods necessary to provide these services. … The purchase and receipt of goods or services necessary for or common to the maintenance of any building, such as gas, electricity, insurance, or mortgage loans, do not prove that the function of the building is to engage in commerce.... On the other hand, the receipt of donations, the purchase of hymnals and payment of dues are the type of commercial activities by which a church would conduct its business as a church, and therefore engage in commerce. Id. at 1295-96 (internal citations omitted).

A case in point is Dylan Roof’s attack on the Church, Emmanuel AME a church that

engaged in activities that courts have held show a sufficient connection to interstate activity,

such as receiving religious and social services; fundraising for the church; paying staff salaries;

14 The legislative history that addresses the very same type of “regulated activity,” including

18 U.S.C. § 247 demonstrate the specific impact of church related violence on interstate commerce through reference to a broad range of commercial activities in which churches and other places of worship engage. Grassie 237 F. 3d at 1209.


18

collecting donations; and using out-of-state vendors. See WL 4011126 (D.S.C.) (Trial Motion,

Memorandum and Affidavit) (July 25 2016) at ¶ 7 12 – 15.

b. The prohibited conduct is carried out across state lines through an infrastructure that supports and affects interstate commerce

The use of violence against places of worship and their congregants is hardly a recent

phenomenon.15 Many of the perpetrators who extend their operations across state lines,16

traveling from out of state to carry out attacks on congregants and/or places of worship in a

single state or in places of worship situated across the United States, see, e.g., Ballinger 395 F.

3d at 1227, routinely use roadways, airways, cars, trains buses, planes in addition to cell phones

and the Internet across state lines to carry out church-related attacks.

In the United States v. Roof, D.S.C. 2016, 225 F. Supp. 3d 438, for example, the

Government presented evidence that the Defendant attacked parishioners at Mother Emanuel

during a Wednesday-night Bible study, used the Internet to conduct research and identify Mother

Emanuel as his target, a telephone to contact the church directly, and GPS navigation satellites to

navigate interstate highways on his multiple trips to and from the vicinity of the church. He used

a Russia-based service to host the online manifesto he posted shortly before the attack at Mother

Emanuel, which explained his motives. In preparation for the attack, Defendant purchased

hollow-point bullets, magazines, and a firearm that had also travelled with him across state lines.

Id. at 472.

15 The Birmingham church bombing that occurred on September 15, 1963 and killed four

young girls is but one of the many attacks carried out against congregants at places of worship by racists and persons motivated by a hostile religious bias.

16 See, e.g. “Violence against Houses of Religion,” 133 Cong. Rec. S4015-01 (March 26 1987); “US Islamophobia: Threats and acts of vandalism against mosques double so far in 2017,” The Independent (March 2015), available at https://www.independent.co.uk/news/world/americas/us-mosques-threats-double-islamophobia-threats-vandalism-2017-cair-american-islamic-relations-a7631581.html


19

Similarly, in the United States v. Doggart, 2017 WL 2416920 (EDNY 2017), “[t]he

government introduced recordings of numerous telephone calls in which Defendant discussed

plans to attack and destroy a mosque … near Hancock, New York” and such comments as

“[t]heir buildings need to be burnt down” and if they were to find bad things during his

surveillance, he added “people (, i.e., congregants] are going to die.” Id. at *2. The same type of

infrastructure including the Internet and social media have been used by foreign operators to

recruit and train extremists in the United States,17 to target, inter alia, synagogues and places of

worship in the U.S.18 See, e.g., Heritage Foundation, 60 Terrorist Plots Since 9/11,” July 23,

2013 at URL: https://www.heritage.org/terrorism/report/60-terrorist-plots-911-continued-

lessons-domestic-counterterrorism (discussing an air cargo attack where two packages shipped

from Yemen to Chicago-area synagogues were discovered to contain printer cartridges with the

explosive material identified while in transit on cargo planes in the United Kingdom and Dubai.

While no arrests have been made, the Yemen-based Al-Qaeda in the Arabian Peninsula (AQAP)

has claimed responsibility for the failed attack.”). See also the U.S. v. Amawi, 541 F. Supp.2d

945, 948-49 (N.D.O 2008) (Court-qualified expert testified to the numerous terrorist

organizations that use the Internet to recruit and train prospective Jihadists.).

17 See, “Countering Violent Extremism: Understanding the Shifting Landscape in National and

International Approaches,” 110 Am. Soc'y Int'l L. Proc. 350, American Society of International Law Proceedings (March 30-April 2, 2016) (discussing how to engage proactively in information and communications technologies (ICT) matters and partner with the private sector and major companies (such as Google, Facebook, Twitter) to design preventive strategies that take into account the fact that terrorist groups, and Isil, in particular, use the internet for these purposes).

18 In an air cargo bomb plot, for example two packages shipped from Yemen to Chicago-area synagogues were discovered to contain explosive materials of the same type used by others in in previously thwarted bombing attempts. The packages contained printer cartridges filled with explosives that were identified while in transit on cargo planes in the United Kingdom and Dubai. While no arrests have been made, the Yemen-based Al-Qaeda in the Arabian Peninsula (AQAP) has claimed responsibility for the failed attack.”


20

As noted below, there are relevant congressional findings, the regulated activities appear

to operate as paid-for commercial services, and the activities of the defendants that are

challenged in this case involve the very kind of conduct that constitutes an attack on religious

practices, including the dissemination of religious views and opinions, the extensive training and

education offered, the cost of thousands of display proselytizing DVDs, fliers, brochures,

booklets, books and banners , in addition to the solicitation and receipt of funds from out of state

donors, that affects interstate commerce. In addition to that, the Defendants carry out the

prohibited conduct through an infrastructure that substantially supports and affects interstate

commerce.

IV. FACEA IS CONSTITUTIONAL AS APPLIED IN THIS CASE

As noted, the Defendants’ as-applied-challenge to § 248(a)(2) occurred after the close of

discovery, foreclosing Plaintiffs from taking discovery on matters that are relevant to presenting

fact specific arguments against Defendants’ defense.19 Plaintiffs are entitled to discovery to

uncover facts relevant to the constitutionality of FACEA as applied in this case, including the

commercial nature of CACWA’s anti-Falun Gong activities;20 the extent to which CACWA’s

anti-Falun Gong activities have been funded from abroad;21 the contacts of the individual

19 Accordingly, Defendants’ as-applied challenge is untimely because the record is not

sufficiently developed to support it. See, e.g., United States v. Goodale, 831 F. Supp. 2d 804, 817 *DCV 2011(“[A] defendant may not make an as-applied challenge without a record to establish the specific facts in the case.”). See also United States v. Vanderhorst, 2 F. Supp. 3d 792, 804 (D.S.C. 2014) (noting that “because the facts of Defendant's case have not been fully developed at this preliminary stage, the Court may not resolve Defendant's as-applied challenge to the statutes at issue”). United States v. Sherman 797 F. Supp. 2d 709, 711 (W.D. Va. 2011(same).

20 According to one eyewitness, Defendant Chu offered to pay him between seven and nine dollars a day to engage in acts vilifying or attacking Falun Gong believers and their religion to residents of and visitors to Flushing. Declaration available upon request.

21 During her deposition, Defendant Li stated under oath that the CACWA vests are made in and imported from China (Deposition of Li Huahong (“Li Dep.”) at 98: 22 – 99:17) and that her brother who resides in China pays the cost of manufacture and shipping. Id. at 99: 10 -


21

defendants with people in China to arrange for the payment and support for CACWA activities;

the extent to which China has funded CACWA events via, e.g., overseas state-affiliated

companies,22 underground banks,23 the Chinese consulate; the Defendants’ interactions with the

Kaiwind.org website directly via telephone or email or less directly by downloading Kaiwind.org

materials from the Internet to support CACWA’s anti-Falun Gong activities;24 Defendants’

interactions with other websites in China to support CACWA anti-Falun Gong activities;25 other

uses of the Internet, telephone26 or other channels of interstate commerce to carry out the alleged

15. She further stated that her brother sends her between $10,000 and $30,000 a year, that she treats as income she need not report to the IRS. Li Dep. at 175:16176:5.

22 “Supporting Overseas Chinese to establish and develop grassroots anti-evil cult organizations is the best avenue to combat the overseas evil-cult” [支持境外侨胞建立和发

展民间反邪教组织是境外反邪教斗争的最佳途径], Chai Lijun (柴礼军) initially hosted on the website http://www.fxj.hunan.gov.cn/Article/UploadFiles/201112/2011120112130498.doc, an official website affiliated with the government of Hunan Province, and now available at http://www.doc88.com/p-292182140263.html. The China-Anti-Cult Alliance document not only emphasizes the importance of supporting anti-Falun Gong overseas entities but also notes that the most useful form of support is funding. The Report then explains that the best way to fund overseas anti-Falun Gong groups "requires our political and economic organizations with overseas operations to cooperate and work together surreptitious activity." This report was attached as Exhibit 25 to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment.

23 Chuin-Wei Yap, In China’s Alleyways, Underground Banks Move Money, WSJ Online, October 27, 2015, https://www.wsj.com/articles/in-chinas-alleyways-underground-banks-move-money-1445911877?mod=e2tw (last visited May 14, 2018).

24 Defendant Chu testified at his deposition that he downloads the articles he publishes in the CACWA newsletters from the Chinese Web, including especially from Kaiwind.org. See Deposition of Michael Chu (“Chu Dep.”) at 136:6-144:6, attached here as Ex. A. A picture of the arrest of Plaintiff Bian Hexiang was also featured on the Kainwind.org website. See Ex. 12 attached to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment. It is far more likely than not that the picture was shared with Kaiwind.org deliberately by Defendants to brag about their anti-Falun Gong successes.

25 In his response to question twenty-two (22) of Plaintiffs’ first set of interrogatories, Defendant Chu again listed several Chinese web sources he accesses to download CACWA newsletter articles.

26 “It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce.”). See United States v. Gallimore 247 F.3d 134, 138 (4th Cir. 2001).


22

offenses. Plaintiffs are still collecting evidence due to Defendants’ neglect to include the

constitutional defense in any of the many answers they have filed with this Court or motions for

summary judgment.

A. The Congressional findings are relevant to the case at bar

As noted, Congress has referred to a broad range of commercial activities in which

churches/ places of worship engage, including the distribution of goods and services, educational

and other activities that attract people from out-of-state collection and distribution of funds for

these and other activities across state lines. See supra at § II. A. (3) (b). As noted supra, § II. A.

(1), there is little merit to the argument that these findings relate solely to the criminalization of

attacks on the real property of churches under 18 U.S.C. § 247(a)(1) and thus do not support the

violence perpetrated here against Plaintiffs while exercising their religious beliefs at places of

worship. The effect of an attack on a place of worship cannot be readily divorced from the effect

it has on the ability of its members to practice their religion there. Indeed, as noted infra, the

Defendants have interfered with activities courts have held show a sufficient connection to

interstate activity, such as receiving goods and services from out-of-state, using out-of-state

vendors, promoting activities that attract people from out of state and the collection of funds for

these activities across state lines no less than the defendants who attack the real property of

churches in violation of § 247(a)(1). As such, Congress’ findings as regards § 247(a)(1) are

relevant herein.

B. The regulated activity is commercial as applied to this case

The regulated activity here appears to be a set of services carried out for and paid for by

Beijing, which as noted, supports “CACAs” in the United States and elsewhere.

The evidentiary record clearly demonstrates the financial cost of running the CACWA

anti-Falun Gong enterprise. There are ample videos and pictures of Defendants CACWA’s floats


23

that are have been used in CACWA anti-Falun Gong parades as early as 2009. As Defendant Li

observed at her deposition, each float cost the Defendants no less than $3,000. There are also

many pictures and videos of the Defendants wearing the CACWA uniform, that is, the CACWA

vests that degrade and demean Falun Gong believers as members of a xie jiao. According to Ms.

Li, the CACWA uniform is manufactured in China and paid for by her brother, who additionally

sends her between $10,000 and $30,000 dollars a year, presumably to support CACWA’s anti-

Falun Gong mandate.30 Other videos and pictures feature CACWA banners and the CACWA

table that displays anti-Falun Gong materials that have been produced by CACWA or supplied

and purchased by them.31 Yet another video features Defendants Chu and Li organizing a free

meal event for CACWA volunteers.32 At least one eyewitness is prepared to testify that

Defendants offered him nine dollars a day to participate in an array of CACWA anti-Falun Gong

activities. In a similar vein, Defendant Wan admitted during her deposition, that Defendant Chu

often purchased lunch for her and has provided extensive services to her free of charge,

presumably in exchange for her CACWA volunteer work.33

It is therefore clear that the activities of the CACWA, including their repeated

interference with Plaintiffs’ exercise of their religion at their places of worship, required funding.

There is also much to suggest that these activities are paid for by Beijing as part of a quid pro

quo. As noted, the China Anti-Cult Alliance (“CACA”) that operates in China in full

collaboration with Office 6-10, instructed its membership to support overseas anti-Falun Gong

(“CACA”) organizations, especially by funding their douzheng activities through the state-

owned enterprises that Beijing has set up overseas. See “Excerpts from CACA Overseas Anti-

cult Work,” attached to Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment as

Ex. 25. Plaintiffs are now looking for an expert in the area of Chinese money laundering to help


24

them ascertain how and the extent to which Beijing provided funds to recruit and support

CACWA’s douzheng mandate. Due to the Defendants’ untimely raising of their constitutional

defense, Plaintiffs have not been afforded the time they would need to identify such an expert

and/or obtain further evidence to support this prong of the Lopez test. As a result, Plaintiffs can

only reiterate that Defendants’ as-applied challenge is premature.

C. The link between the prohibited activity and its effect on interstate commerce is not attenuated.

Section 248 is constitutional as applied to this case because it also satisfies the fourth

prong of the Lopez standard in that (a) the prohibited conduct interferes with interstate

commerce; and (b) the prohibited conduct is carried out across state or national borders through

an infrastructure that supports interstate commerce.

1. The prohibited conduct interferes with interstate activity in this case

The place of worship involved here depends upon on a network of interstate suppliers

that facilitate the proselytizing and other worship/ religious activities the Spiritual Center offers.

The leaflets Plaintiffs distribute to passersby to proselytize are printed by Epoch Express, a New

Jersey printing house that prints and ships approximately thirty five thousand (35000)

newspapers and fourteen thousand (14000) fliers to the Center about fifty times a year. See

Declaration of Yuebin Yu (Michael Yu, attached here as Ex. F ¶ 2. The books, booklets, and

DVDs Plaintiffs and other Falun Gong volunteers use to proselytize are made in Taiwan at Yih

Chyum Book Co., LTD, which ships seventy-five thousand books, six thousand and six hundred

(6600) booklets and fifteen hundred 1500) DVDs to the Spiritual Center every year. Id. ¶ 3. On

average, one hundred and twenty five (125) banners and seventy (70) posters are designed,

produced and shipped to the Center from Pomona California by B2Sign. Id. ¶ 4. The Spiritual

Center activities attract Falun Gong believers from across the United States and abroad to attend


25

the rallies and parades the Spiritual Center organizes every May in New York City and to

participate in proselytizing training sessions. Id. ¶ 5. Training believers as to how to effectively

proselytize is a major part of the religious work of the Spiritual Center. Id. ¶ 6. The last such

training sessions took place respectively on October 2016 in San Francisco at 2850 19th Ave.,

San Francisco, CA 94132; and on May 2017 at the Hotel Pennsylvania, at 401 7th Ave., New

York, NY 10001. Id. ¶ 7. The spiritual Center seeks and receives donations from in- and out-of-

state donors to fund the above activities in addition to funding the cost of its day-to-day

operation. Id. ¶ 8. The commercial activities at the Falun Gong places of worship, which have

figured as the target of the Defendants’ attacks, fall within the interstate business category and

establish a sufficient nexus to satisfy Lopez.

2. The Defendants carry out the prohibited conduct through an infrastructure that substantially supports interstate commerce in this case.

Without the benefit of answers to deposition questions or cross-examination of

Defendants at trial, Plaintiffs can say that the Defendants’ interference with Plaintiffs first

amendment religious activities at such Falun Gong places of worship as the Spiritual Center

and/or Spiritual Center tables has been carried out through an infrastructure that supports

interstate commerce. This infrastructure includes the foreign manufacture of the CACWA vests

that the Defendants wear to identify themselves as CACWA volunteers. See supra at § III. B. It

likely includes telephone calls and/or email between Defendant Li and her brother in China to

arrange for the production and export of such materials. It may include funding from Beijing

through overseas state-affiliated companies, underground banks or the Chinese consulate. See

supra at § III. B, referencing a CACA article that directs CACA members to support overseas

“CACAs” especially through back door forms of funding. It certainly includes Defendant Chu’s

use of the Chinese web to download articles for republication in CACWA newsletter, including


26

those downloaded from the Kaiwind.org website that is managed by Beijing’s Office 6-10. See,

e.g., Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, ECF No. 106 at 2, 4,

7. It may also include Li’s brother’s wiring of funds to her, email or phone calls between

Defendants Li and/or Chu with Kaiwind.org regarding Kaiwind’s CACWA-related publications

and the incessant use of Defendant Li’s cell phone to call for back up to support the violence and

threats she has carried out in the vicinity of the Spiritual Center tables.34

The activities that Defendants engage in to carry out the attacks that target Plaintiffs’

religious/worship activities at Falun Gong places of worship support the infrastructure of

interstate commerce that includes foreign websites, the Internet, cell phones and perhaps also

money wiring services, foreign banks, and/or money laundering channels. Defendants’ reliance

on the infrastructure that supports international (and perhaps interstate) commerce is significant

and, as a result, falls within the interstate commerce category and establish a sufficient nexus to

satisfy Lopez.

V. CONCLUSION

For all of these reasons and any others the Court may introduce, Plaintiffs ask that the

Defendants’ motion to amend be denied as untimely and prejudicial. Defendants’ motion

asserting the unconstitutionality of FACEA should be denied on its lack of merit and Plaintiffs’

FACEA claim should be permitted to proceed to trial.

Dated: May 21, 2018


UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ZHANG Jingrong, ZHOU Yanhua, ZHANG Peng, ZHANG Cuiping, WEI Min, LO Kitsuen, LI Xiurong, CAO Lijun, HU Yang, GAO Jinying, CUI Lina, XU Ting, and BIAN Hexiang, Plaintiffs, vs. Chinese Anti-Cult World Alliance (CACWA), Michael CHU, LI Huahong, WAN Hongjuan, ZHU Zirou, & DOES 1-5 Inclusive, Defendants.

DECLARATION OF TERRI MARSH IN SUPPORT OF THE CONSTITUTIONALITY OF FACEA AND RELATED ARGUMENTS

No. 15-CV-1046 (JBW) (VMS)

TERRI E. MARSH, an attorney admitted to practice before this Court, declares the

following under penalty of perjury:

1. I am the Executive Director and Senior Litigation partner of the Human Rights Law

Foundation and Plaintiffs’ counsel in this action. I am familiar with the proceedings in this matter

and I submit this declaration in support of Plaintiffs’ motion for partial summary judgment.

2. Annexed hereto are the following exhibits:

Exhibit A. Excerpts of Deposition of Michael Chu

Exhibit B. Photograph of CACWA float in parade

Exhibit C. Excerpts of Deposition of Li Huahong

Exhibit D. Photograph of Li Huahong at CACWA table

Exhibit E. Excerpts of Deposition of Wan Hongjuan

Exhibit F. Declaration of Yuebin Yu on interstate commerce activities of Falun Gong Spiritual Center

Case 1:15-cv-01046-PKC-VMS Document 171-1 Filed 05/21/18 Page 1 of 2 PageID #: 2772

2

We believe that these exhibits and the materials contained here support Plaintiffs’ request

that Plaintiffs’ FACEA claim be permitted to proceed to trial.

WHEREFORE, Plaintiffs respectfully ask that the Court grant Plaintiffs’ request and for any

further relief the Court deems necessary and proper.

Dated: Washington, D. C. May 21, 2018 /s/

___________________________________ TERRI E. MARSH


EXHIBIT A – DEPOSITION OF MICHAEL CHU


EXHIBIT B – PHOTOGRAPH OF CACWA FLOAT

Ex. B - CACWA Float in 2015 Parade. Photograph taken on February 21, 2015, 11:14 a.m.


EXHIBIT C – DEPOSITION OF HUAHONG LI


EXHIBIT D – LI HUAHONG AT CACWA TABLE

Photograph taken May 2, 2015, 1:45 p.m.


EXHIBIT E – DEPOSITION OF WAN HONGJUAN


EXHIBIT F – DECLARATION OF YUEBIN YU

PLAINTIFFS,

ZHANG Jingrong, ZHOU Yanhua,

ZHANG Peng, ZHANG Cuiping, MIN,

Wei, LO Kitsuen, LI Xiurong, CAO Lijun,

HU Yang, GAO Jinying, CUI Lina, XU

Ting, and BIAN Hexiang

V.

Chinese Anti-Cult World Alliance, Michael

CHU, LI Huahong, WAN Hongjuan,

ZHU Zirou, & DOES 1-5 Inclusive

Defendants

No. 15-CV-1046 (SLT) (VMS)

DECLARATION OF YUEBIN YU (‘MICHAEL YU’), DIRECTOR OF THE FALUN GONG SPIRITUAL CENTER, ON ACTIVITIES HELD AT AND BY THE FALUN

GONG SPIRITUAL CENTER IN FLUSHING AND ITS BRANCHES

1. The place of worship involved here depends upon on a network of interstate suppliers that

facilitate the proselytizing and other worship/ religious activities the Spiritual Center offers.

2. The leaflets Plaintiffs distribute to passersby to proselytize are printed by Epoch Express, a

New Jersey printing house that prints and ships approximately thirty five thousand (35000)

newspapers and fourteen thousand (14000) fliers to the Center about fifty times a year.

3. The books, booklets, and DVDs Plaintiffs and other Falun Gong volunteers use to

proselytize are made in Taiwan by Yih Chyum Book Co., LTD, which ships seventy-five

thousand books, six thousand and six hundred (6600) booklets and fifteen hundred 1500)

DVDs to the Spiritual Center every year.

4. On average, one hundred and twenty five (125) banners and seventy (70) posters are

designed, produced and shipped to the Center from Pomona California by B2Sign.


EXHIBIT F – DECLARATION OF YUEBIN YU

5. The Spiritual Center activities attract Falun Gong believers from across the United States

and abroad to attend the rallies and parades the Spiritual Center organizes every May in New

York City and to participate in proselytizing training sessions.

6. Training believers as to how to effectively proselytize is a major part of the religious work of

the Spiritual Center.

7. The last such training sessions took place respectively on October 2016 in San Francisco at

2850 19th Ave., San Francisco, CA 94132; and on May 2017 at the Hotel Pennsylvania, at

401 7th Ave., New York, NY 10001.

8. The spiritual Center seeks and receives donations from in- and out-of-state donors to fund

the above activities in addition to funding the cost of its day-to-day operation.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and

correct.

Executed on this 21st day of May 2018, in Flushing, New York

______/s/Yuebin Yu______

Yuebin Yu (Michael Yu)


united states district court eastern district of new … · wan hongjuan, zhu zirou, & does 1-5...

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