United States v. HaggertyUnited States v. Haggerty
Before HAYNES, HIGGINSON, and OLDHAM, Circuit Judges.
After a stipulated-facts bench trial, Appellant Justin Haggerty was convicted of malicious injury of property located on “Indian country” in violation of
I. BACKGROUND
According to the stipulated facts, on Columbus Day in 2017, Haggerty poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe). The tribe erected the statue to honor the women of their tribe and had unveiled it just three months earlier. It cost $92,000.1 Law enforcement arrested Haggerty after linking him to the purchase of the wood and paint used in the crime. In addition, in the months preceding the crime, Haggerty had reposted or liked social media posts: (1) expressing concern that a statue of Christopher Columbus would be removed from Columbus Circle in New York City; (2) urging Catholics to unite to defend Columbus Day from being replaced by a “pagan” Indigenous Peoples Day; and (3)
Although the factual stipulation described Haggerty as physically appearing to be a “white male” based on surveillance footage, neither the stipulation nor the indictment described whether Haggerty was Indian or non-Indian.
After being arrested and indicted under
Based on the factual stipulation, the district court convicted Haggerty. In calculating the Guidelines range for purposes of sentencing, the court applied an enhancement pursuant to U.S.S.G. § 2B1.5 because the offense involved damage to a cultural heritage resource: the statue. Relevant here, the court increased Haggerty‘s offense level by six because it valued the statue at $92,000. See U.S.S.G. §§ 2B1.5(b)(1)(B), 2B1.1(b)(1). Haggerty‘s total offense level was 13, yielding a Guidelines range of 12 to 18 months imprisonment. The court sentenced Haggerty to the low end of the range, 12 months and one day in prison, followed by three years of supervised release. Haggerty filed a timely notice of appeal.
In his appeal, Haggerty raises two issues.
First, Haggerty argues that because
Second, Haggerty argues the district court erred at sentencing by incorrectly applying U.S.S.G. § 2B1.5. He claims the court should have used the repair cost of $1,800 as the “value” of the statue for purposes of applying the enhancement, rather than its $92,000 purchase price.
We take each issue in turn.
II. INDIAN/NON-INDIAN STATUS UNDER 18 U.S.C. § 1152
A. Standard of Review
Both Haggerty and the Government agree that Haggerty has preserved a general sufficiency-of-the-evidence challenge by pleading not guilty in advance of his bench trial, citing the rule first stated in Hall v. United States, 286 F.2d 676 (5th Cir. 1960). There, we held that when a defendant pleads not guilty before a bench trial, “[t]he plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary.” Id. at 677; accord United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992); United States v. Vargas, 673 F. App‘x 393, 394 (5th Cir. 2016). The parties thus assert that Haggerty‘s sufficiency-of-the-evidence challenge relating to the purported
Regardless, however, of whether Haggerty has preserved a general sufficiency-of-the-evidence challenge, there are serious reasons to think that Haggerty has not preserved the underlying legal argument that a defendant‘s Indian or non-Indian status is an essential element of any offense prosecuted pursuant to
In addition, an indictment that fails to include all of the essential elements of the charged offense is defective and can be dismissed upon a defendant‘s motion for “failure to state an offense.”
Instead, Haggerty waited until his appeal—after jeopardy had attached, and after he successfully argued for and received acceptance of responsibility credit because he sought a bench trial to “preserve issues that do not relate to factual guilt“—to make that same underlying legal argument for the first time. Thus, even though Haggerty does not purport to attack the sufficiency of the indictment on appeal, there is a serious question as to whether his failure to assert his underlying legal argument that his non-Indian status is an essential element precludes him from repackaging that argument into a sufficiency-of-the-evidence challenge on appeal.
At bottom, we are skeptical that we can apply anything but plain error review to a legal argument that is being made for the first time on appeal, especially when Haggerty passed on an available opportunity
B. Discussion
In relevant part,
offenses on Indian reservations.” Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 (1978), superseded by statute on other grounds as recognized in United States v. Lara, 541 U.S. 193, 205-07 (2004). Section 1152 states in full:
Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
In its first clause,
The question presented here—an issue of first impression in this circuit—is, when the victim is Indian (both charged and also proven), whether the intra-Indian carve-out in
A circuit split exists on this issue. In United States v. Hester, the Ninth Circuit
The key practical difference created by the split concerns who must raise and prove, and with what convincing force, the issue of Indian/non-Indian status. The Ninth Circuit reasoned that, when the victim is Indian, a defendant‘s Indian status is an affirmative defense for which the defendant bears the burden of pleading and production. See Hester, 719 F.2d at 1043. Under that view, the Government need not allege the defendant‘s non-Indian status, id., but should the defendant “properly raise[] the issue of his Indian status,” the court in Hester recognized that “the ultimate burden of proof remains, of course, upon the Government.” Id. By contrast, the Tenth Circuit held that the entire burden is on the Government: it must allege the defendant‘s (and victim‘s) Indian/non-Indian status and bear the burden of production and persuasion at trial. Prentiss, 256 F.3d at 975, 980.10
We agree with both circuits in that, either way, the Government retains the ultimate burden of persuasion because a defendant‘s Indian/non-Indian status, via the operation of
It is a “well-established rule of criminal statutory construction that an exception set forth in a distinct clause or provision should be construed as an affirmative defense and not as an essential element of the crime.” United States v. Santos-Riviera, 183 F.3d 367, 370-71 (5th Cir. 1999). The Supreme Court articulated
By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.
Section 1152 appears to be the exact type of statute contemplated by the Supreme Court. It has two distinct clauses, the first of which generally extends the scope of all federal enclave laws to include Indian country. The second clause, set out from the first, describes three exceptions to the general definition set forth in the first clause.
To counter the applicability of the McKelvey rule to
But Haggerty‘s argument only works if its conclusion is also its premise: that because the intra-Indian exception is an essential element of the offense, the offense cannot be described if the exception is omitted. Such reasoning is circular. See Prentiss, 256 F.3d at 988 (Baldock, J., dissenting) (“The [majority] claims that ‘the ingredients of the offence cannot be accurately and clearly described if the [interracial] exception is omitted.’ But that simply begs the question of what ‘ingredients’ constitute the offense.” (alteration in original)). By contrast, here is one way to describe Haggerty‘s crime of conviction under
Importantly, Haggerty has not convincingly explained why we could treat the intra-Indian exception as an essential element, but not the other two exceptions contained in the second clause of
While the McKelvey rule requires that we treat the intra-Indian exception as exactly that—an exception—Haggerty argues that we are foreclosed from doing so by other Supreme Court precedent. Haggerty focuses on two nineteenth-century cases involving prosecutions under a predecessor statute to
Indian/non-Indian status is also an essential element. However, we disagree that the Supreme Court held as much in either case.
Lucas concerned the prosecution of an Indian defendant for an alleged murder committed in Indian country. 163 U.S. at 614-15. The Government had alleged in the indictment that the victim “was a negro, and not an Indian” and then proceeded at trial to introduce evidence that the victim was not a tribal member. Id. at 616-17. The defense objected to the evidence purporting to show the victim‘s non-Indian status. Id. at 617. Despite the introduction of such disputed evidence, the district court instructed the jury that there was a legal presumption that the victim was non-Indian given the concession that he was “a negro.” Id. at 615. The Court concluded this presumption and instruction were error, and explained that “[t]he burden of proof was on the government to sustain the jurisdiction of the court by evidence as to the status of the deceased [i.e., the victim], and the question should have gone to the jury as one of fact, and not of presumption.” Id. at 617-18; see also id. at 615 (“[T]he averment in the indictment in the present case that [the victim] was a negro, and not an Indian, was the averment of a jurisdictional fact, which it was necessary for the prosecution to sustain by competent evidence.“).13
The same is true of Smith. Smith also concerned the prosecution of an Indian defendant for the alleged murder of a victim whom, in another similarity to Lucas, the Government alleged in the indictment to be “a white man, and not an Indian.” Id. at 50, 53-55. At trial, the defense called multiple witnesses in an effort to prove that the victim, like the defendant, was Indian. Id. at 54. The Supreme Court reversed the defendant‘s conviction, concluding that the Government had offered no relevant evidence tending to prove the victim‘s non-Indian status responsive to contrary evidence presented by the defense. Id. at 55-56. The Court wrote: “That [the victim] was a white man, and not an Indian, was a fact which the government was bound to establish, and, if it failed to introduce any evidence upon that point, defendant was entitled to an instruction to that effect.” Id. at 55. As with Lucas, the Supreme Court described that the ultimate burden of proof with respect to the victim‘s non-Indian status remained with the Government. But, again like Lucas, the Court in Smith did not describe which party had the initial burden to raise the issue of the victim‘s Indian/non-Indian status.
In sum, with respect to crimes prosecuted via
III. THE “VALUE” OF A CULTURAL HERITAGE RESOURCE UNDER U.S.S.G. § 2B1.5
A. Standard of Review
Haggerty did object at sentencing to the district court‘s application of U.S.S.G. § 2B1.5. Therefore, we review the district court‘s application of the Guidelines de novo, and review findings of fact for clear error. United States v. Valdez, 726 F.3d 684, 692 (5th Cir. 2013). “There is no clear error if the district court‘s finding is plausible in light of the record as a whole.” Id. (citation omitted).
U.S.S.G. § 2B1.1 is the applicable guideline for Haggerty‘s conviction under
Section 2B1.5 applies to the “theft of, damage to, or destruction of, cultural heritage resources.” It provides a base offense level of 8 and instructs that the offense level should be increased “[i]f the value of the cultural heritage resource” exceeds certain threshold amounts set forth in the table contained in § 2B1.1(b)(1). U.S.S.G. §§ 2B1.5(a)-(b)(1) (2018) (emphasis added).
The “value of the resource” is defined in Application Note 2(A), which states:
Value of the Resource Under Subsection (b)(1).—This application note applies to the determination of the value of the resource under subsection (b)(1).
(A) General Rule.—For purposes of subsection (b)(1), the value of the resource shall include, as applicable to the particular resource involved, the following:
(i) The archaeological value. (Archaeological value shall be included in the case of any resource that is an archaeological resource.)
(ii) The commercial value.
(iii) The cost of restoration and repair.
U.S.S.G. § 2B1.5 cmt. n.2.
The terms “archaeological value,” “commercial value,” and “cost of restoration and repair” are defined in Application Note 2(C). There is no dispute that “archaeological value” is irrelevant here, or that the definition of “cost of restoration and repair” would include the $1,800 repair cost to the statue. Nor that the definition of “commercial value” is “the fair market value of the resource at the time of the offense.” U.S.S.G. § 2B1.5 cmt. n.2(C)(ii). Additionally, Application Note 2(B) states that “[f]or purposes of subsection (b)(1), the court need only make a reasonable estimate of the value of the resource based on available information.” U.S.S.G. § 2B1.5 cmt. n.2(B).
Here, the probation officer who completed the Presentence Investigation Report (“PSR“) calculated the value of the statue, for purposes of applying § 2B1.5, based on its “commercial value,” which she calculated to be the $92,000 purchase price of the statue. The district court adopted the PSR without change.
Haggerty argues the district court made two errors in applying § 2B1.5. First, without further elaboration, he argues that the statue‘s $92,000 “purchase price” is not evidence of its “commercial value” for purposes of § 2B1.5. Second, assuming arguendo that the commercial value of the statue totals $92,000, he argues that “[a]s a matter of law, where—as here—a non-archaeological ‘resource’ is restored to its prior physical condition, it is error to use the total value of that resource in calculating the offense level under USSG § 2B1.5; rather, the court should use the cost of restoration incurred in bringing the resource back to its prior condition.”
Haggerty‘s first argument plainly fails. The PSR describes that the tribe purchased the statue on December 2, 2016, roughly ten months before the offense. There is no indication that the tribe received a below-market price. Thus, on the information available to it, the district court did not commit clear error in concluding that the statue‘s “purchase price” provides a reasonable estimate of its “fair
With respect to his second argument, Haggerty cites no law in support of his asserted principle that the restoration cost should control.14
Regardless, his argument is unsupported by the text. The Guidelines state only that the “value” of the cultural heritage resource “shall include, as applicable,” the three different valuations. U.S.S.G. § 2B1.5 cmt. n.2(A). There is nothing that suggests that “the cost of restoration or repair” takes precedence over and obviates the other two valuations.
While the text of § 2B1.5 forecloses Haggerty‘s argument, we also note that the Sentencing Commission‘s explanation for why it promulgated § 2B1.5 further cuts against Haggerty‘s view. See generally U.S.S.G. supp. to app. C, amend. 638 at 245, 253-56 (Nov. 1, 2002).15 Notably, the Commission makes it clear that the harm that it is concerned about when it comes to the damage and destruction of cultural heritage resources is not purely (or even primarily) the resource‘s physical condition or monetary value. Rather, the purpose of § 2B1.5 is to provide “flexibility” to appropriately punish offenders for both the tangible and intangible harm caused by their damage of cultural heritage resources. See id. at 253-54. As the Commission explains:
This amendment reflects the Commission‘s conclusion that the existing sentencing guidelines for economic and property destruction crimes are inadequate to punish in an appropriate and proportional way the variety of federal crimes involving the theft of, damage to, destruction of, or illicit trafficking in, cultural heritage resources. . . .
. . . Because individuals, communities, and nations identify themselves through intellectual, emotional, and spiritual connections to places and objects, the effects of cultural heritage resource crimes transcend mere monetary considerations. Accordingly, this new guideline takes into account the transcendent and irreplaceable value of cultural heritage resources and punishes in a proportionate way the
aggravating conduct associated with cultural heritage resource crimes.
. . .
The new guideline also provides that the monetary value of the cultural heritage resource is an important, although not the sole, factor in determining the appropriate punishment. The Commission has elected not to use the concept of “loss,” which is an integral part of the theft, fraud, and property destruction guideline at §2B1.1, because cultural heritage offenses do not involve the same fungible and compensatory values embodied in “loss.” Instead, under this new guideline, value is to be based on commercial value, archaeological value, and the cost of restoration and repair.
Id. (emphasis added).
In short, Haggerty‘s second argument would have us rewrite the text of § 2B1.5 in tension with the purpose behind its promulgation.
IV. CONCLUSION
Haggerty‘s conviction and sentence are AFFIRMED.
I agree that Haggerty‘s conviction must be affirmed. But I respectfully disagree with the majority‘s refusal to review his sufficiency-of-the-evidence claim for plain error. See ante, at 4-6. Binding en banc precedent holds that raising sufficiency issues is not enough to preserve unraised “factual and legal subissue[s]” like the one Haggerty wants to litigate. United States v. Brace, 145 F.3d 247, 258 n.2 (5th Cir. 1998) (en banc). I do not understand how we can dismiss an on-point en banc decision as a mere “suggest[ion].” Compare ante, at 4-5, with Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir. 2018) (“Three-judge panels abide by a prior Fifth Circuit decision until the decision is overruled . . . by the Fifth Circuit sitting en banc.” (quotation omitted)). Obviously future panels will be bound by Brace, even if ours is not.
In the majority‘s defense, this is not the first time we‘ve sown confusion in this area. I write separately to explain how error preservation is supposed to work. And how badly we‘ve misinterpreted the rules over the last 60 years.
I.
Let‘s start with how error preservation is supposed to work. It‘s axiomatic that “a right may be forfeited in criminal . . . cases by the failure to timely assert[]” it. Puckett v. United States, 556 U.S. 129, 134 (2009) (quotation omitted). It‘s also well established that the only way to timely assert a right in a federal criminal case is to comply with Federal Rule of Criminal Procedure 51(b). See id. at 135. That Rule provides:
A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party‘s objection to the court‘s action and the grounds for that objection.
Thus, a criminal defendant like Haggerty can preserve a claim of error in two (and only two) ways. First, he can inform the court “of the action [he] wishes the court to take” at the time he seeks a ruling. Second, he can inform the court of his “objection to the court‘s action and the grounds for that objection” at the time a ruling is made. Those are the options. And whichever option a defendant chooses, his requested action or grounds for objection must be specific. See Puckett, 556 U.S. at 134 (explaining that an objector must “give[] the district court the opportunity to consider and resolve” his objections); United States v. Kieffer, 991 F.3d 630, 638 (5th Cir. 2021) (Oldham, J., concurring in the judgment) (“In general, the litigant attempting to preserve an error must focus the decisionmaker‘s mind on the specific legal problem, so the error (if there is one) can be corrected.“). Failure to comply with these constraints “precludes the raising on appeal of the unpreserved claim” unless the “limited exception” of plain-error review applies. Puckett, 556 U.S. at 135;
Federal Rule of Criminal Procedure 29 applies this framework to sufficiency-of-the-evidence challenges. The Rule permits a defendant to file a “motion [for] . . . a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
II.
Given all this, you might wonder how someone like Haggerty—who concedes he “did not move for acquittal for insufficient evidence” at trial, Blue Br. 8—could possibly get de novo review of a sufficiency claim on appeal. The answer lies in a case we decided 60 years ago and that has no basis in the Rules.
A.
That case is Hall v. United States, 286 F.2d 676 (5th Cir. 1960). The defendant in Hall appealed his federal conviction for bank fraud on the sole ground of insufficient evidence. Id. at 677-78. But he hadn‘t said anything about sufficiency to the trial court. So the Government sensibly asked our court to review the conviction for plain error. See id. at 677.
We refused. After quoting precedent that unequivocally held the failure to raise a sufficiency challenge required plain-error review, see ibid. (quoting Demos v. United States, 205 F.2d 596, 599 (5th Cir. 1953)), we confined that rule to cases involving jury trials. We then held that in bench trial cases, pleading not guilty automatically preserves all sufficiency issues for appeal. Here is the entirety of our reasoning:
[T]here can be little or no need for a formal motion for a judgment of acquittal in a criminal case tried to a court without a jury upon the defendant‘s plea of not guilty. The plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary. In such a case, therefore, we hold that the sufficiency of the evidence to sustain a conviction should be reviewed the same as if there had been a formal motion for judgment of acquittal.
Ibid. (citation omitted).
Hall‘s theory has gained some purchase. A leading treatise calls it “sound.” See 2A CHARLES ALAN WRIGHT & PETER J. HENNING, FEDERAL PRACTICE AND PROCEDURE § 469, at 391 (4th ed. 2009). Several of our sister circuits have adopted it. See, e.g., United States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004) (joining the Sixth, Seventh, Ninth, and D.C. Circuits in holding that ” a defendant does not have to make a Rule 29 motion in a bench trial to preserve the usual standard of review for a sufficiency of the evidence claim on appeal“). And our court continues to apply it. See ante, at 4; United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992).
B.
We should stop. There are four reasons why.
First, Hall ignores the text of Rule 51.2 The Supreme Court has made clear that Rule 51 is the mechanism for error preservation in a federal criminal case. See Puckett, 556 U.S. at 135 (“In federal criminal cases, Rule 51(b) tells parties how to preserve claims of error . . . .“). And the preservation mechanism in Hall looks nothing like the procedure spelled out in Rule 51. Pleading not guilty obviously doesn‘t qualify as an “objection to the court‘s action” or provide “grounds for that objection.”
qualify as informing the court of an “action the [defendant] wishes the court to take” with the requisite degree of specificity. Ibid. Even our most lenient post-Hall preservation precedents recognize that “not guilty!” falls woefully short of what a defendant must say to get de novo review. See, e.g., United States v. Staggers, 961 F.3d 745, 754 (5th Cir. 2020) (holding a defendant must at least “make[] a general sufficiency-of-the-evidence challenge” at trial to obtain de novo sufficiency review on appeal (emphasis added) (quotation omitted)). If it were otherwise, plain-error sufficiency review would completely disappear. Contra United States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en banc) (“The four-prong [plain-error] analysis is applicable to all forfeited claims of error . . ., including [a] claim that the evidence [is] insufficient to support [a] . . . conviction.“).
Second, Hall ignores the foundational preservation principles that underlie Rule 51. A central reason for the contemporaneous-objection requirement is that it “gives the district court the opportunity to consider and resolve” a defendant‘s objections as they arise. Puckett, 556 U.S. at 134. That is possible when a defendant timely raises sufficiency concerns about evidence that has already been admitted at trial. See
And why would a defendant lodge a proper objection under Rule 51 when a simple not-guilty plea suffices? In fact, why even bother to plead at all? The Federal Rules say that “[i]f a defendant refuses to enter a plea[,] . . . the court must enter a plea of not guilty.”
Third, Hall creates a distinction between sufficiency problems and other constitutional infirmities that doesn‘t make
Fourth, and finally, Hall introduces a distinction between jury trials and bench trials that doesn‘t make sense. The theory appears to be that in a bench trial where the court is the factfinder, pleading not guilty and then filing a motion under Rule 29 essentially asks the court to repeat the same exercise twice. See Hall, 286 F.2d at 677 (“The plea of not guilty asks the court for a judgment of acquittal, and a motion to the same end is not necessary.“). But that reasoning doesn‘t hold up.
For one thing, the premise is wrong. Even in bench trials, not-guilty pleas and Rule 29 motions serve different functions and require courts to perform different tasks. “A plea of not guilty puts all material elements of the crime charged in play, even the most obvious facts.” 1A CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE § 173, at 177 (4th ed. 2008). A court that receives such a plea must therefore hold the Government to its burden of proof by conducting a trial. See id. at 177 n.5. By contrast, a Rule 29 motion “challenge[s] the sufficiency of the evidence” after it is offered at trial. WRIGHT & HENNING, supra, § 466, at 355. A court that receives such a motion must therefore review the evidence and “enter . . . judgment” if the Government has failed to make the necessary showing. Id. § 461, at 320. Entering judgment on sufficiency grounds is obviously not an option until after the Government has presented its case. See supra at 5. So it makes no sense to say that a pre-evidence plea can double as a post-evidence acquittal motion. The plea informs the court that the defendant wants a trial because he hopes the evidence will emerge in his favor; the motion informs the court that the defendant wants a judgment because he thinks the evidence has borne out his plea. Cf. United States v. Johnson, 741 F. App‘x 233, 234 (5th Cir. 2018) (per curiam) (describing a defendant‘s decision to plead guilty in light of trial evidence that undermined his defense).
But even if Hall is right about the redundancy of pleading not guilty and moving for acquittal in a bench trial, treating jury trials differently is still problematic.
*
*
*
I would apply Rule 51 as written and review Haggerty‘s forfeited sufficiency claim for plain error. Hall‘s command to the contrary violates Supreme Court precedent and common sense. Today‘s treatment of the standard of review only further confuses a deeply confused doctrine.
Notes
Prentiss, 256 F.3d at 975 n.2 (alterations in original).An affirmative defense may impose various burdens on the defendant: (1) the burden of pleading (“the burden of introducing [a] defense for consideration“), Paul H. Robinson, 1 Criminal Law Defenses § 3(a), at 12 (1984); (2) the burden of production (the burden of “adduc[ing] sufficient evidence to . . . support . . . the presence of [a] defense“), id. § 3(b), at 15; or (3) the burden of persuasion (the burden of “convinc[ing] the tribunal of the existence of the facts” supporting the defense). id. § 5(a), at 41.