Michigan Court Vacates Convictions Over a Major Jury Instruction Error

[00:00:00]As you all know, the last few years of practice, I did primarily appellet work.

[00:00:05]So, I'm always interested in appellet opinions that differ from the ordinary.

[00:00:10]We have one of those today from Michigan and a relatively high-profile case, and I'll tell you all about it in just a moment.

[00:00:20][music] Hi, Tony Dit here. I am a retired Missouri attorney who has now unretired so that I can bring you some commentary on trials and that sort of thing.

[00:00:37]Because I deal generally with legal topics, I'm not offering any legal advice and I'm not intending to form any lawyer client relationships with any of you. I'm simply presenting some information. I am a content creator. I am not currently practicing law, although I do maintain my license in the state of Missouri. This is a trial channel and today we're discussing a trial. In fact, this is what we're discussing today.

[00:01:04][music] At first glance, this case called State versus Musicico looks contradictory, but the court here is actually dealing with three different questions that are of a procedural nature.

[00:01:25]May an appellet court consider an issue omitted from the original appellet briefs?

[00:01:32]Two, what standard applies when an issue was never raised in the trial court? And three, has the appellant adequately developed the argument once the court agrees to consider it? The court answered those three questions differently and that distinction becomes important in this video. An appellet court normally decides the issues the lawyers bring to it. What happens when a court discovers a winning argument that the defendants did not include in their original briefs? Can the judges simply raise it themselves and reverse the convictions? And if they can do that, why does the same court complain that another constitutional argument was never raised before the trial judge?

[00:02:19]That sounds contradictory. But this new Michigan decision provides a fascinating lesson about appellet discretion, preservation of error, and the difference between reversing a conviction and ordering an acquitt.

[00:02:33]Today we're looking at a Michigan Court of Appeals decision involving Pete Muso and Paul Belar. Their convictions arose from the alleged plot to kidnap Michigan Governor Gretchen Whitmer. You may recall back in 2020, the FBI busted a bunch of larpers who thought their cool gang could 86 the governor of Michigan.

[00:02:57]Well, the case didn't go well for them and it didn't go well for the FBI.

[00:03:01]Truthfully, the main agent had some real difficulties with his employer based on his conduct in that case, and several of the defendants were eventually acquitted.

[00:03:12]But these two along with a third were tried together and convicted, and they appealed, and the court vacated every one of their convictions.

[00:03:23]But it did so on an argument that neither one of them had included in his original appellet brief. That alone makes this case worth discussing. The opinion is People versus Musicico and People versus Bolar. It's an unpublished decision issued by the Michigan Court of Appeals on July 20th of this year, and I will try to link it in the description.

[00:03:50]So, here's the background.

[00:03:52]The case begins with the Wolverine Watchman. Gosh, sounds like a pretty cool name. just a thing for people who want to go out and play mercenary without actually having any real idea what they're doing. According to the court's description, Joseph Morrison created a Wolverine Watchmen Facebook page in November of 2019.

[00:04:15]He described it as a group of patriots who could network, recruit like-minded people, develop quick reaction forces, and practice squad tactics.

[00:04:26]That sounds great if you're going to go out and play paintball together, but it's a really bad idea if you're planning on harming politicians. And for the record, no one should ever consider violence as a means of political protest. Never.

[00:04:42]Well, the members were eventually directed to move their communications to Wire, an encrypted communications platform. Remember what I said about signal a few days ago in my Antifa video? How it can be compromised from within?

[00:04:59]Yeah. In March 2020, an Army veteran named Dan Chapel joined the organization. Chapel testified that he became concerned after seeing discussions about retaliatory operations against law enforcement officers. He had originally joined because it sounded like a pro- second amendment group.

[00:05:22]Well, seeing those things that suggested maybe retaliation against law enforcement, he took the information to his local constabularary and they eventually reached out to the FBI.

[00:05:34]Chapel then was recruited and became an FBI confidential human source. He gave agents access to communications, wore a wire to meetings and training events, and participated in activities while the FBI monitored what was happening. During the summer of 2020, Adam Fox and Barry Croft developed the plot to kidnap Governor Whitner. Music, Bellar, and Morrison were prosecuted in Michigan State Court for allegedly providing assistance connected with that plot.

[00:06:09]All three men were tried together before the same jury. That's important. Keep that in mind. They all three were convicted of their crimes, providing material support for an act of terrorism, committing a felony motivated by gang membership or association, and possessing a firearm during the commission of a felony.

[00:06:30]There was a major problem in the instructions given to the jury.

[00:06:36]To understand that problem, we have to look at the wording of Michigan's anti-terrorism statute. The material support charge required prosecution to prove that the defendants knowingly provided support to someone knowing that the support would be used to prepare, plan, facilitate, carry out, or avoid apprehension for an act of terrorism.

[00:07:01]And under the statute, an act of terrorism must involve a violent felony.

[00:07:07]Under the particular definition used in the statute, a violent felony must include as an element of the crime, the use, attempted use, or threatened use of physical force against another person.

[00:07:23]Now, I think most people just reading through that using the dictionary would naturally describe kidnapping as a violent crime. Criminal statutes don't always depend on how ordinary people describe an offense or even on how Websters does. They depend upon the precise elements crafted by the legislature. And in 2006, the Michigan legislature rewrote its kidnapping statute.

[00:07:51]After that amendment, the use or threat of physical force was no longer necessarily an element of every form of kidnapping.

[00:08:01]A kidnapping could apparently be committed through secret confinement or other conduct without the prosecution being required to prove physical force as a formal element of the crime.

[00:08:15]For example, you could say, "Hey, you want to go for a ride with me?" Somebody gets in the car voluntarily and then they say, "Where are we going?" And you tell them you're taking them somewhere they don't want to go. Could be kidnapping.

[00:08:28]Well, at any rate, that statutory mismatch between the material support and the kidnapping statutes came to full fruition in this case because the anti-terrorism law required an underlying felony having force as an element. But kidnapping no longer necessarily had force as an element.

[00:08:49]Therefore, the court of appeals held in a separately decided case of People versus Morrison, the third guy tried with these two, that kidnapping could not serve as the violent felony supporting this particular material support for terrorism charge.

[00:09:09]That would not necessarily have required reversal if the jury had clearly based its verdict on some other offense. The prosecution had also presented evidence relating to possible murder, assault, or other violent conduct. But the jury was expressly instructed that kidnapping could qualify as the underlying act of terrorism. And the verdict form did not ask the jurors to identify which underlying offense they had selected.

[00:09:39]The jurors simply checked guilty or not guilty on the material support charge.

[00:09:45]That created what appellet lawyers call an alternative theory problem. One theory submitted to the jury was legally valid. Another theory was legally invalid. The appellet court had no way to determine which one the jury used.

[00:10:01]The judges could not simply assume the jury ignored the kidnapping plot, the central subject of much of the trial, and convicted on some entirely different theory. The Morrison court therefore vacated Morrison's convictions because there was a reasonable probability the jury had relied at least in part upon the invalid kidnapping theory because the material support charge supplied the underlying felony for the gang and firearm charges. Those convictions also fell.

[00:10:35]Here is where the appellet procedure becomes especially interesting.

[00:10:40]Morrison raised this statutory argument in his appeal because he was represented by other lawyers. Musico and Delar did not raise it in their original appellet briefs. After oral argument in Muso's case, but while his appeal was still pending, Musico asked for permission to file a supplemental brief raising the same issue. The court of appeals allowed him to do so. The law had not even made that request. The court acting suisponte or on its own motion ordered Bolar to file a supplemental brief addressing the effect of the Morrison decision.

[00:11:21]Prosecution said, "Whoa, wait a minute here. There's a problem with that." They argued that the issue hadn't been raised in either of the original briefs.

[00:11:32]According to the prosecution, the court should decide only the issues properly presented and leave the defendants to file for postconviction relief later.

[00:11:42]Postconviction relief is rarely effective. Plus, you have to spend all that time in prison while you're waiting for postconviction relief. So, the Court of Appeals said, "No, sorry. We're not going to do that." Under rule 7.216, 216 that gives the Court of Appeals the power at any time and on terms it considers just and that's important, justice, to permit amendments or additions to the grounds for appeal. The court said in substance, "We have the discretion to consider an issue the parties did not originally raise. We exercised that discretion when we allowed Musco's supplemental brief, and we exercised it again when we ordered Bolar to address the issue on our own motion.

[00:12:29]At first glance, the next part of the opinion seems a little bit inconsistent.

[00:12:35]Music also argued the material support statute was unconstitutional.

[00:12:40]He claimed that it was over broad, that it was vague, that it violated the first amendment by criminalizing speech and advocacy.

[00:12:49]But Muso had not raised those constitutional objections in the trial court. The court of appeals immediately pointed that out.

[00:12:59]So why was the court willing to consider an issue omitted from the appellet briefs but not concerned about a constitutional issue which you would think would be relatively more important that was omitted from the trial court because those are two different appellet procedural standards and defects. There are really three separate doors an appellet argument must pass through.

[00:13:24]Door number one was the issue presented to the trial court. That's preservation.

[00:13:30]The general rule is that a party should give the trial judge an opportunity to identify and correct an alleged error.

[00:13:38]When that doesn't happen, the appellet court may still review the issue, but usually under a much more demanding standard.

[00:13:46]Here, the constitutional claim was unpreserved.

[00:13:50]So the court reviewed it only for plain error affecting substantial rights. The court did not entirely refuse to consider the constitutional claim. It considered the claim under a tougher standard because the trial judge had never been asked to rule on it. Door number two was the issue presented in appellet briefs. That is the issue presented of presentation on appeal.

[00:14:15]Appellet courts rely on the parties to identify the questions to be decided.

[00:14:20]Judges generally should not become advocates by inventing arguments for one side, but appellet courts also possess institutional authority to control the cases before them. Michigan rules expressly allow the court to permit additional grounds for appeal. That authority is discretionary. The defendants were not automatically entitled to raise the argument late. The court decided to permit it. And part of the reason they were allowed to do so was because the court had ruled in Morrison that the case had to be remanded and all three of the men were tried together before the same jury. Had the court not done so, a substantive due process issue would have existed. And door number three, was the argument adequately developed? Even when an issue is technically before the court, even on plain error review like Musos was, the appellant has to develop it. The court said Musico's vagueness argument was largely conclusory. He complained about words such as training, expert assistance, and personnel, but did not sufficiently explain how those words connected and were vague as applied to his conduct. The appellet court is not required to complete an argument that a lawyer merely announces. There's no true contradiction here. One rule determines whether the appellet court will allow an issue into the appeal. Another determines how strictly the court reviews the appeal and a third determines whether the argument has been developed well enough to decide.

[00:16:00]Musicico argued the material support statute was over broad because it could criminalize the dissemination of information or ideas. The court disagreed. It said the statute did not criminalize ordinary political criticism, opposition to government policy, or abstract advocacy of civil unrest. Instead, it prohibited knowingly providing support to another person while knowing that person would use that support to plan or facilitate an act of terrorism.

[00:16:32]That distinction between independent advocacy and coordinated material support was crucial. Musico had relied on Brandenburgg versus Ohio, the famous First Amendment case holding that abstract advocacy of violence generally can't be punished unless it is directed toward and likely to produce eminent lawless action. But the Michigan court said that was not simply a prosecution for advocating an idea. It was prosecution for knowingly providing material support. The court relied heavily on the United States Supreme Court's decision in Holder versus humanitarian law project which upheld certain restrictions on coordinated speech-based material support to terrorist organizations.

[00:17:22]The court therefore rejected the over breath argument as applied first amendment argument and vagueness argument.

[00:17:32]Muso nevertheless wanted the court to go one step further. He did not merely want his conviction vacated because of an erroneous instruction. He wanted the court to hold that the evidence was legally insufficient.

[00:17:47]That distinction matters enormously because under traditional rules, if there's enough evidence for a jury to consider it, then it's not legally insufficient.

[00:18:00]And more importantly, when a conviction is reversed because of trial error, such as an erroneous jury instruction, the government may ordinarily retry the defendant. The theory is the first jury never provided the defendant and the state a legally proper trial. But when a conviction is reversed because of a prosecution's evidence was insufficient, the double jeopardy clause generally bars a second trial. Musico was therefore asking the court to characterize the problem as a failure of proof rather than as a failure to give it proper instruction. The court of appeals politely declined said it was bound by the published decision in Morrison which treated the defect as an instructional error unrelated to factual guilt or innocence. Consequently, the convictions were vacated, but the state may pursue further proceedings on remand. That was a major victory for the defendants, but not a total victory for a quiddle.

[00:19:02]The court addressed one additional issue because it might have produced greater relief. Michigan's gang statute defines a gang as qualifying organization of five or more people but excludes nonprofit organizations.

[00:19:17]Music argued that the Wolverine Watchmen was a nonprofit organization because the group was not formed to earn money.

[00:19:28]You know, it's just really like the United Way. It's like the Red Cross.

[00:19:32]It's a 501c3 nonprofit.

[00:19:36]The court kind of laughed at that. They agreed. The court did that it had a non-puniary purpose. They're not out there to make money. But it said a nonprofit organization must also have a lawful purpose. Otherwise, any criminal organization that wasn't trying to make money could escape the gang statute simply by calling itself a nonprofit.

[00:19:59]Imagine if your local branch of the mafia organized a 501c3 organization called, you know, Meals for Steels and went out and engaged in crime and then when they were tried under the gang statute said, "Whoa, whoa, whoa, whoa, whoa. We were organized for a lawful purpose. We're a 501c3.

[00:20:24]Can't charge us as being a gang."

[00:20:28]It's a good argument in some ways. It's certainly creative, but it's also a stupid argument. A nonprofit organization.

[00:20:37]Yeah, right. The court considered that an absurd interpretation. It therefore found sufficient evidence from which the jury could conclude that the Wolverine Watchmen were not within the nonprofit exception because they were a bunch of larers out there trying to put together a plot to kidnap Gretch and Whitner.

[00:20:57]However, the court also observed that the original jury had not been instructed about the nonprofit exclusion.

[00:21:04]It's a second jury instruction error in this case. And if the prosecution pursues the gang charge again, the new jury must receive that portion of the statutory definition.

[00:21:19]The larger lesson from this decision is that an appeal is not simply a checklist in which every missed issue disappears forever. Appellet courts possess discretion.

[00:21:32]Courts in Michigan tend to exercise it liberally. Courts in other states like Missouri frequently do not. In Missouri, the result in this case may well have been different.

[00:21:45]Appallet courts often permit supplemental briefing, particularly as in this case where an intervening decision changes the law in some material way. That's what that Morrison decision did. They may ask parties to address the new case in new briefing.

[00:22:02]They may even raise a controlling legal issue on their own and tell the lawyers on both sides to brief the issue.

[00:22:10]They do that because their role is to ensure that justice is done.

[00:22:16]But discretion is not the same thing as a free pass for not raising an argument when you should have. An argument not raised before the trial judge may receive only plain error review. That's because the trial court was always in the best position to evaluate the issue as it applied in that case. as courts sometimes say, you can't convict a trial court of error on an issue that was never put before it.

[00:22:45]Additionally, an argument not developed in the appellet brief may be considered abandoned, even if the successful argument may result only in a new trial rather than a quiddle. Here, three men were tried before the same jury using the same defective instruction. All three got the same relief. Once the published Morrison decision came out, kidnapping could no longer serve as the required violent felony, allowing Melison's conviction to be vacated while leaving Musos and Bellar's convictions intact, and that would have been difficult to justify. The Court of Appeals used its procedural discretion to reach the same legal error in all three cases. That's not necessarily inconsistency. It's the difference between preservation, appellet presentation, adequate briefing, and the court's power to ensure that similarly situated defendants are all treated alike.

[00:23:42]So, that's what I have for you here today. Thanks for being here. Catch me back here tomorrow. Thanks for watching my video. I really appreciate it. And today, as you go about your business, would you try to do just one kind thing for somebody? It doesn't have to be a big thing. You can open a door for somebody who has their arms full. You could buy somebody a Coke. You could let the manager know when somebody did a really good job for you at the grocery store or at Walmart or someplace else.

[00:24:15]There are all kinds of things we can do to make people's lives better. And a lot of times people will always remember to go to the manager and complain. They very seldom remember to go to the manager and say, 'Hey, you know that guy over there in produce is topnotch.

[00:24:31]And I think it's really important to do that because I want to make the world a better place. I know you're here probably because you want to make the world a better place. So, let's do that and let's be respectful of one another.

[00:24:43]And uh thank God we live in the greatest country in the free world. I do think that the good folks at YouTube have a few things they want to show you up here that you might be interested in. And if you are, I'd appreciate you clicking.

[00:24:58]Thanks. Have a great day.