Alamo Attorneys File Motion for New Trial
Numerous errors cited in what critics call an ‘Arkansas Kangaroo Court’
By Greg Szymanski, JD
Aug. 23, 2009
Lawyers for Tony Alamo have filed a motion asking for a new trial based on numerous errors.
Alamo was recently convicted on 10 counts of violating the Mann Act — a federal law prohibiting the transport of minors across state lines for illicit purposes.
To convict Alamo falsely, the government relied on intimidating and turning five former Alamo Ministry members, who were offered favors while being counseled at an institution called Wellspring.
It just so happens that Wellsping has deep roots to the Roman Catholic Church, which is the very organization Alamo has long criticized and called the Anti-Christ as explained in the Three Angels message in the Book of Revelations.
To further complicate matters during jury deliberations in the Alamo trial, jury members sent a note to the judge asking if they could still convict Alamo if there was no evidence of sex on trips Alamo allegedly took with the underage girls.
Instead of following the letter of the law which would have led to an answer of “no” by the judge, he skirted the question and instructed the jury to simply just follow his jury instructions.
Here is a copy of the motion for a new trial by Alamo’s attorneys:
United States District Court
WESTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA §
BERNIE LAZAR HOFFMAN, §
also known as TONY ALAMO §
DEFENDANT’S MOTION FOR NEW TRIAL
COMES NOW BERNIE LAZAR HOFFMAN, also known as TONY ALAMO,
Defendant herein, and for his Motion for New Trial pursuant to the 5th and 6th Amendments to the United States Constitution and Rule 33 of the Federal Rules of Criminal Procedure, would respectfully show unto the Court the following:
1. The court committed error by denying Defendant’s Motion to Suppress. The motion was based on stale information in the affidavit supporting the search warrant as well as no indicia of informant reliability nor any statement of reliability. Thus, all evidence collected during the September 20, 2008 search should have been ruled inadmissible.
2. The court committed error by failing to require the government to reveal the identity of two informants.
3. The court committed error by refusing to have the government reveal their original notes of interviews with witnesses and further refusing to inspect in camera the notes of the governmental agents or, at least, to order them preserved with the court.
4. The court committed error by refusing the defense request to see and inspect the records of Wellspring counseling center as to government witnesses Kolbeck, Orlando and Eddy. This is especially true since the credibility of witnesses was the ultimate issue in the case.
5. The court committed error by refusing Defendant’s request to see and inspect all FBI 302’s of witness interviews. Even though the government said they did not have any that they had not turned over to the defense, the testimony of witnesses show that there were repeated and numerous interviews by law enforcement. Witness Desiree Kolbeck alone testified she talked to the FBI at least 80 times.
6. The court committed error by denying the defense Rule 29 motion on the sufficiency of the evidence as to all counts, as the government failed to prove the elements of the offense alleged in the Second Superseding Indictment beyond a reasonable doubt. By count set forth below, the evidence presented was legally and factually insufficient to sustain conviction on any count:
Count 1: Summer Hagan was not supposed to go on the trip to California. There were multiple purposes of the trip, including visits to Defendant’s doctors, installation of a new soundsystem in the California church, and shopping for and purchasing jewelry and clothing related to church activities, as well as routine church business. Summer Hagen testified she really did not know why she was going, but Alys Ondrisek testified it was their idea to go on the trip, not Tony Alamo’s.
Count 2: The evidence is that Tony left California to see his sick brother in Nashville. When he returned to Fouke, Hurricane Katrina had caused a chaotic situation in the central United States and he did not want church members, including his own children, to travel during this time. One of the complaining witnesses called from California and wanted to come home to Fouke. Tony resisted because his daughter was with them and other church members. Finally, he relented and gave permission for them to travel home to Fouke. Sex was never alleged to have occurred on this trip. There was no evidence showing the dominant purpose was for immoral purposes with Hagan.
Counts 3 and 4: All of the evidence is that Desiree Kolbeck’s mother visited her freely and on the two occasions came and got her and took her to the mother’s home in Oklahoma. There is no evidence the purpose of the trip was for sex. In fact, Jennifer Kolbeck testified as to the real purposes for her daughter’s travels, which did not include sexual activity.
Count 5: Amy Eddy testified she arrived in Fouke in January, 1998 while Tony Alamo was in prison serving his sentence for a federal tax conviction. Mr. Alamo was not released from prison until July 8, 1998. He stayed in a half-way house until December, 1998. Amy Eddy’s father was concerned and she went to Ft. Smith to talk to him over the phone. Her mother, Sue Davis, testified as to the reasons for Amy Eddy’s transportation, which did not include sexual activity. Ms. Davis sent her back to Fouke.
Count 6: The testimony concerning the 1999 trip to Nashville, Tennessee established that the purpose for the travel was to look at real estate and visit Mr. Alamo’s sick brother. Amy Eddy testified she did not have sex with Mr. Alamo on this trip. In addition, Mr. Alamo got permission from his probation officer to travel with her and set forth the purposes of the travel on the travel request form.
Count 7: This concerned a trip to California for a legal matter that was interrupted and church members spent the night in Albuquerque, New Mexico before returning to Fort Smith, Arkansas. Witness Orlando testified that “I’m not sure about it, but it had to do with legal matters.” There was no evidence of sex on this trip, either. Angel Morales testified that she and Orlando stayed in the same room and Orlando never left.
Counts 8 and 9: This was a trip from Fort Smith, Arkansas to Huntington, West Virginia for a deposition in West Virginia. Orlando testified that the trip to West Virginia had “something to do with his ex-wife.” She also testified on cross examination that she “didn’t remember if they went from Ft. Smith to Memphis.” Several witnesses, including Sandford White, Angel Morales, and Sharon Alamo confirmed that a trip from Fort Smith to Memphis never occurred, as the group traveled straight from West Virginia to Memphis, Tennessee. There was no evidence of any sex on this trip. Orlando’s parents were waiting in Memphis to assist Mr. Alamo in the tax trial. There was also testimony that Orlando shared a room with someone in Huntington and did not leave the room that night.
Count 10: This count concerned the substitution of office personnel in Fouke and California. Witnesses Rodriguez and Orlando were to go to the church in California to take the place of two other office workers who wanted to return to Fouke. Rodriguez merely asked if she could accompany Orlando because she wanted to go to California. There is absolutely no evidence Tony did anything to require Rodriguez to come to California or return to Fouke from California. The testimony was from Rodriguez: “Needed someone to go with Jeanne. He asked if I wanted to go.” There was testimony that church members always travel in pairs, as referenced in the Bible. The evidence of criminal intent is totally lacking by the evidence at trial.
7. The court committed error by allowing into evidence over the objection of the defense numerous items of tangible and testimonial evidence that was clearly irrelevant and prejudicial inviolation of Rules 401, 403, and 404 of the Federal Rules of Evidence. This included evidence and allegations of Defendant’s relationship with adult women, his control over the ministry, his tax evasion conviction, the insinuation of hiding assets suggesting some sort of fraud, tax evasion, wage and hour violations, assault and battery, corporal punishment, and others. The cumulative effect of the irrelevant testimony operated to deprive the defendant of a fair trial.
8. The court committed error by allowing into evidence over the objection of the defendant incidents of threats of physical violence and actual violence.
9. The court committed error by allowing into evidence over the objection of the defendant the telephone tapes from monitored jail conversations as same were irrelevant to the charges in the indictment.
10. The court committed error by emphasizing the fact before the jury that the witness Jennifer Kolbek took the 5th Amendment in response to a question on cross examination by the government.
The question was irrelevant—“Where do you live now?”—and by first striking her testimony and then re-instating her testimony. Her credibility was unduly and irreparably damaged. It is plain error to require a witness to take the 5th amendment in front of the jury. The jury should have been excused for the discussion of the witness’s privilege against self-incrimination and not told why the witness was removed from the witness stand.
11. The court committed error by allowing the government to force the witness Sue Davis to take the 5th amendment before the jury. The government knew she would and deliberately invoked the error which is prosecutorial misconduct that should have resulted in a mistrial. Again, the Court allowed her to take the 5th in front of the jury and then emphasized it, thus damaging her credibility.
12. The court committed error by allowing the testimony of the 404 (b) witnesses.
13. The court committed error by denying Defendant’s motion for a mistrial upon the statement of the government in their initial closing argument that was an impermissible comment on Defendant’s exercise of his 5th amendment right during the trial. The error could not be cured even though the court gave a curative instruction to the jury.
14. The court committed error by denying the defendants Rule 29 motion on count two (2) of the Second Superseding Indictment as same was not supported by proper venue.
15. The court committed error by allowing into evidence over Defendant’s objections numerous irrelevant exhibits, The cumulative effect was to deny the defendant a fair trial.
16. The court committed error by denying portions of Defendant’s Motion In Limine.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that the convictions herein be set aside and Defendant be granted a new trial and for any other relief to which he may be entitled.
HARRELSON LAW FIRM, P.A.
300 North State Line Avenue (71854)
Post Office Box 40 (75504-0040)
Telephone: (870) 772-0300
Facsimile: (870) 772-0302
BY: /s/ Jeff Harrelson
Arkansas Bar Number 96118
CERTIFICATE OF CONFERENCE
I hereby certify that the office of defense counsel conferred the 30th day of July, 2009 with Ms. Candace Taylor, counsel for the United States, and was informed that the United States opposed the relief requested herein.
/s/ Jeff Harrelson
CERTIFICATE OF SERVICE
I, Jeff Harrelson, Attorney at Law, hereby certify that I have on the 31st day of July, 2009, served the foregoing by electronic filing to the following persons at the addresses so indicated.
/s/ Jeff Harrelson
Ms. Kyra E. Jenner
Ms. Candace Taylor
Mr. Clay Fowlkes
Addendum to Motion for New Trial
17. The First Amendment directs that Congress shall make “no law” respecting an establishment of religion or prohibiting the free exercise thereof. This language is absolute. It does not say that Congress can make laws infringing upon religious freedom only under certain circumstances or that only certain kinds of laws can be enacted infringing religious freedom. It says that Congress can make no law that so infringes.
A secular court imposes its own laws and prejudices on its proceedings and trials. It operates outside a religious context and brings its own judgment to bear on religious views and prejudices of individual jurors to the fact finding process. Taken together, these two factors infringe upon the rights of an individual who is being tried on facts that raise conflicts between secular law and religious beliefs.
In Mr. Alamo’s trial, the Government’s allegations concerned, for the most part, the marrying of post pubescent females to older men. Generally speaking, this arrangement is proscribed by secular law and condemned by members of the jury.
For thousands of years and in most historic societies, such marriages were commonplace and not condemned by society or proscribed by law. Webster’s dictionary defines childhood as the “state or time of being a child; state of time from birth or infancy to puberty or maturity” and defines puberty as “the state or quality of being first capable of begetting or bearing offspring which is marked by maturing of the reproductive organs, with the onset of menstruation in the female and the development of secondary sex characters in both sexes; the period at which sexual maturity is reached.”
The age of puberty varies in different climates and environments, being from thirteen to sixteen in boys and eleven to fourteen in girls, and is commonly designated legally as fourteen for boys and twelve for girls. In hotter climates, puberty in young women can begin as early as 8 or 9.
The Bible itself is replete with such marriages, for example, in the King James’ version of the Bible at 1 Kings 1:2, the king was old and ill and could not stay warm. His servants sought and found a young virgin to “lie in thy bosom, that my lord the king may get heat.” In the book of Jasher, Chapter 24, verses 24 – 40, it is recounted how Rebecca reaches puberty at ten years old and marries Jacob’s father, Isaac, who is forty years old.
The Apocrypha relates that when Mary was twelve years old and God had sent Grace upon her, an angel of the Lord commanded Zacharias to assemble widowers and to “whomsoever the Lord shall show a sign, his wife shall she be.” Joseph, an older man, was distraught because he believed he would be ridiculed because of his age difference, but followed the will of the Lord and married her.
In the early days of the settlement of this country, such marriages were common and not forbidden within the secular or religious context. But, at this time in history, adherence to this biblically sanctioned practice brings prejudice and condemnation, such that the judge of the facts and of the law of the secular courts, are unable to fairly judge Mr. Alamo.
The unfair position Mr. Alamo was placed in by this trial concerned the above biblically founded religious belief. If he had advanced this religious belief concerning the appropriate marriage age of women during the trial in an attempt to mitigate prejudice and condemnation, he most certainly would have been misunderstood to have been justifying the acts of which he was accused and, in effect, admitting to them even though he denies that they occurred.
A clear purpose of the Tony Alamo Christian Ministries is to protect young women from an environment, a society which bombards them through radio, television, the internet, movies, and other media with violence and clandestine sexual behavior. Keeping them within the religious community and limiting their exposure, both to this media and young men until they are of marriageable age, is believed by the Church to be a God-sanctioned way of raising young women. Advancing this idea at trial might well have mitigated prejudice on the part of the jury but, in the secular environment of the courtroom, would have brought about the aforementioned supposition detrimental to Mr. Alamo.
The First Amendment to the United States Constitution does not contemplate placing an individual in this predicament. The forum of a secular court makes a fair trial impossible for Mr. Alamo under these circumstances. Only a trial, by a religious tribunal without the above-referenced prejudices, could conduct a fair trial under these circumstances and avoid the religious infringement by a secular court.
18. The Court erred in failing to properly answer the jury note asking the question, “Did Tony have to have sexual contact or intercourse out of state to be charged? It happened in Fouke, AR before trip and after return to Fouke, AR.” The Court should have directed jurors to the appropriate portion of the charge which tells them, essentially, that such actual sexual contact or intercourse is inconsequential to a conviction, that the requisite intent on the part of Mr. Alamo when crossing state lines is the determining factor.