This week, the Sixth Circuit issued a pair of significant criminal decisions.  In the first, U.S. v. Mateen, the Court issued its en banc decision in this criminal sentencing case concerning offenses against a minor.  We initially reported on the en banc hearing here.  The en banc decision was unanimous (with Judge Clay concurring) and per curiam (an unusual disposition for an en banc decision).  What was also interesting about the result was that the Court was unanimous notwithstanding the fact that the panel result was divided.  That means that all of the judges were able to coalesce around the result in this case notwithstanding previous differences of opinion.  The en banc Court vacated the judgment and remanded to the district court for resentencing, after a disposition on the grammatical “rule of the last antecedent.”

The case that may attract more attention, however, is the Court’s opinion from yesterday in U.S. v. Miller, more commonly known as the Amish haircutting case.  The case involved assaults in certain Amish communities that were ultimately prosecuted as hate crimes.  After several individuals were convicted, they appealed, and the Sixth Circuit, in a divided opinion, reversed.  There is a very interesting Commerce Clause issue posed by this case, but the majority ended up not addressing it based on its reversal premised on the jury instructions.  The Court found that an intervening U.S. Supreme Court decision, Burrage v. U.S., 134 S. Ct. 881 (2014), rendered the instructions given by the district court erroneous.  In light of the Supreme Court’s decision, the victim’s protected characteristic must be a but-for cause behind the defendants’ decision to act.  While the government sought to salvage the trial result based on harmless error, the majority was not persuaded.  Acknowledging that some religious discord undoubtedly influenced the assaults, the Court nevertheless explained “untangling the role of religion, family, personality and other issues in the assaults was the point of the trial.”  Judge Sargus (sitting by designation from the Southern District of Ohio) dissented, criticizing the majority’s interpretation of the statute.  This case received national attention, and it is now headed back for another trial.  Stay tuned.