PASADENA, Calif. (CN) — A panel of the Ninth Circuit Court of Appeals appeared unimpressed by a federal judge's decision earlier this year to throw out the indictment of two far-right white supremacists charged under the Anti-Riot Act after the judge concluded they were the victims of selective prosecution.
The three-judge panel, at a hearing Tuesday in Pasadena, California, showed concern about the ruling by Senior U.S. District Cormac Carney, a George W. Bush appointee, who in February agreed with two members of the Rise Above Movement who argued they were singled out because of their politics since members of the far-left antifa movement, who engaged in similar violent conduct at protests, weren't prosecuted by the feds.
For the second time, the Ninth Circuit is reviewing the judge's ruling in the case. The court reversed his previous order throwing out the charges on First Amendment grounds.
The panel at Tuesday's hearing showed particular concern about Carney's findings that three antifa activists, who were arrested for inciting a riot at a 2017 "Make America Great Again" rally in Southern California, were similarly situated but weren't charged with violating the Anti-Riot Act.
The problem with that comparison, according to Assistant U.S. Attorney Alexander Robbins, was that the government had no evidence that the antifa activists engaged in interstate communications to plan their rioting — an essential element for a violation of the Anti-Riot Act, without which they couldn't be convicted.
That line of argument appeared to resonate with the panel.
"The reality is you got to prove beyond a reasonable doubt that each of element of the Anti-Riot Act has been violated, and you don't even come close that," U.S. Circuit Judge Milan Smith Jr., a George W. Bush appointee, said of the antifa activists.
"Whereas in the case of the defendants here," the judge said, "they actually put all the evidence up on the internet, bragging about what they did, the preparation and the like."
The prosecutor agreed that the strength of the evidence was a major factor for the U.S. attorney's office to make a charging decision.
U.S. District Judge Jon Tigar, a Barack Obama appointee sitting by designation from the Northern District of California, noted that the differences in the criminal history between the two groups of rioters may also defeat the idea that the white supremacists were singled out for their political views.
Caroline Platt, a federal public defender representing the two men, pointed the panel to the police reports of the arrests of the antifa activists that, she said, showed that they came to the rallies armed with pepper spray and that they used pepper spray and their fists to attack Donald Trump supporters.
Judge Smith wasn't necessarily persuaded. He cited the government's evidence that the Rise Above Movement was a highly organized, almost mafia-like organization that recruits and trains people to go to demonstrations with the intent to hurt people.
The third judge on the panel was Senior U.S. Circuit Judge Richard Paez, a Bill Clinton appointee.
Robert Rundo, one of the two men first charged in 2018, was extradited to the U.S. from Rumania last year.
According to federal prosecutors, he co-founded the Rise Above Movement, a racially motivated violent extremist organization that has portrayed itself as a combat-ready militant group representing a new nationalist white supremacy and identity movement.
The group trained in mixed martial arts and in 2017 went to political rallies in Huntington Beach and Berkeley, California, specifically to confront and attack counterprotesters affiliated with the antifa movement, the leftist anti-fascist groups that became prominent in response to the election of Donald Trump in 2016.
According to a ProPublica report on the Rise Above Movement, some of its members were also at the violent Unite the Right rally in Charlottesville, Virginia in 2017, where an assortment of white supremacist and neo-Nazi groups clashed with counter-demonstrators.
Rundo and other members of his group were first charged with violating the Anti-Riot Act in 2018. However, Carney threw out the indictment the following year because he concluded the 1968 law, enacted during the height of protests against the Vietnam War, was unconstitutionally overbroad in violation of the First Amendment.
"Make no mistake that it is reprehensible to throw punches in the name of teaching antifa some lesson," Carney said at the time. "Nor does the court condone RAM’s hateful and toxic ideology. But the government has sufficient means at its disposal to prevent and punish such behavior without sacrificing the First Amendment."
The Ninth Circuit reversed Carney's decision, and federal prosecutors filed a superseding indictment against Rundo and two of his associates in January.
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