Full opinion text
MEMORANDUM DECISION & ORDER DETERMINING COMPETENCY DALE A. KIMBALL, District Judge. This matter is before the court on the United States’ motion, brought pursuant to 18 U.S.C. § 4241, to determine Defendant Brian David Mitchell’s competency to stand trial for the charges of kidnaping in violation of 18 U.S.C. § 1201(a)(1), and unlawful transportation of a minor in violation of 18 U.S.C. § 2423(a). This court held an evidentiary hearing on Mitchell’s competency on October 1, 2009 and November 30, 2009 through December 11, 2009. At the hearing, the United States was represented by Brett L. Tolman, Richard N.W. Lambert, David F. Backman, Diana Hagen, and Alicia Cook, and Defendant Brian David Mitchell was represented by Robert L. Steele, Parker Douglas, Audrey K. James, and Kent Hart. After the hearing, the parties submitted legal memoranda and proposed findings and conclusions. The court received the parties’ final submissions on February 16, 2010. Having carefully considered the evidence admitted at the hearing, including the competency evaluations of Dr. Michael Weiner, Dr. Noel Gardner, and Dr. Richart DeMier, the arguments advanced by the parties in their written memoranda and at the hearing, as well as the law governing a determination of competency, the court enters the following Findings of Fact, Conclusions of Law, Memorandum Decision and Order Determining Competency. PRELIMINARY LEGAL ISSUES A. Competency Standard The standard for determining competency is well established through United States Supreme Court case law. Federal courts have acknowledged that the Due Process Clause of “[t]he Constitution forbids the trial of a defendant who lacks mental competency.” United States v. DeShazer; 554 F.3d 1281, 1285 (10th Cir.2009). Accordingly, the United States Supreme Court set forth a standard for determining competency in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), which requires a defendant to have (1) a rational and factual understanding of the proceedings and (2) the ability to consult with counsel with a reasonable degree of rational understanding. Id. More recently, the Supreme Court has recognized that requiring a criminal defendant to “be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel.” Godinez v. Moran, 509 U.S. 389, 402, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). In this case, Mitchell’s defense counsel recognized at the competency hearing that Mitchell has a factual understanding of the proceedings. The issue for the court, therefore, is to determine whether Defendant has a rational understanding of the proceedings and the ability to consult with counsel with a reasonable degree of rational understanding. “A defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.” Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir.1992). “Although the facts in each case vary, the circuits addressing competency after Dusky, including our own, have used a sufficient contact with reality as the touchstone for ascertaining the existence of a rational understanding.” Id. (citing cases). B. Evidence Relevant to Determining Competency The court’s determination of competency is a factual, rather than legal, determination. United States v. Mackovich, 209 F.3d 1227, 1232 (10th Cir.2000). In determining competency, this court “ ‘may rely on a number of factors, including medical opinion and the court’s observation of the defendant.’ ” United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir.1998) (quoting United States v. Nichols, 56 F.3d 403, 411 (2d Cir.1995)). In cases, such as this one, with multiple experts, a district court may find a defendant competent by adopting the findings of one expert and discounting the contrary findings of another. Miles v. Dorsey, 61 F.3d 1459, 1472-74 (10th Cir.1995); Mackovich, 209 F.3d at 1232; Deshazer, 554 F.3d at 1287. “[T]he Court may rely on, in addition to expert testimony, lay witness testimony concerning the [defendant’s] rational behavior, and cross examination of [defendant’s] expert.” Bundy v. Dugger, 675 F.Supp. 622, 634 (M.D.Fla.1987) (citing United States v. Mota, 598 F.2d 995, 998-1000 (5th Cir.1979)). Lay witness testimony is especially important where the evidence indicates a defendant may be malingering or manipulating the system. See, e.g., United States v. Gigante, 925 F.Supp. 967, 976 (E.D.N.Y.1996) (relying on lay witness testimony to find that defendant’s “actions and decisions were wholly inconsistent with the behavior observed by the doctors ... and that his motive for putting on a ‘crazy act’ for all those years was to avoid apprehension by law enforcement”); United States v. Birdsell, 775 F.2d 645, 650-51 (5th Cir.1985) (affirming finding of competency based in part on the district court’s reliance on “the observations of those witnesses in long-term daily contact with the patient rather than conclusions based on a relatively brief period of examination”); State v. Robertson, 932 P.2d 1219, 1224 (Utah 1997), overruled on other grounds by State v. Weeks, 61 P.3d 1000 (Utah 2002) (affirming finding of competency based in part on district court’s reliance of lay witness testimony from a police officer, a nurse, and a clinical worker). In several pre-hearing motions, defense counsel sought to preclude lay witness testimony, expert testimony relating to Mitchell’s cultural influences, and the report and testimony of Dr. Michael Weiner. The court previously denied those motions in written opinions issued prior to the competency hearing. Defense counsel continues to assert that the evidence should not be considered or should be given little, if any, weight. The court, however, having now had the opportunity to view the evidence in context during the competency hearing is more persuaded than before as to the relevance and necessity of this evidence to the court’s determination of competency. Mitchell’s refusal to participate in the process makes this information necessary to a full understanding of his condition. Mitchell has selectively spoken with mental health evaluators and refused to be psychologically tested. There was no credible evidence that Mitchell’s refusal to participate in psychological testing, something that could undermine a finding of incompetence given the results of psychological testing he had when he was younger, was anything other than a self-serving decision. The court, therefore, concludes that there is no basis for revisiting its prior evidentiary rulings. The defense also takes issue with the court making extensive factual findings in relation to its determination of competency. Defense counsel contends that any findings relating to Mitchell’s potential guilt of the charged crimes will prejudice Mitchell at trial. But courts routinely make preliminary factual findings in connection with pre-trial motions, such as motions to suppress, that may relate to the potential guilt of the defendant. Rule 12(d) of the Federal Rules of Criminal Procedure states that “[wjhen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” Fed.R.Crim.P. 12(d). Accordingly, the court is required to include any fact it believes essential to its ruling. As discussed above, the court disagrees as to the scope of relevant evidence relating to Mitchell’s competency and Mitchell himself has made the need for extensive information necessary. Moreover, the court is only making findings relevant to competency, an eventual jury will make findings as to guilt. Under 18 U.S.C. § 4241(f), the court’s findings with respect to competency are not admissible at trial and “shall not prejudice the defendant in raising the issue of his insanity as a defense to the offense charged.” Any question as to potential juror prejudice can be dealt with during the jury selection process and in specific jury instructions. C. Burden of Proof Under 18 U.S.C. § 4241, a defendant is not competent to stand trial if “the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Id.; see also United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992). While the statute plainly states that the burden of proof is a preponderance of the evidence, it does not state which party bears that burden. See United States v. Wayt, 24 Fed.Appx. 880, 883 (10th Cir. Nov. 27, 2001) (unpublished) (noting that the “federal statute providing for competency hearings does not allocate the burden of proof’); see also United States v. Whittington, 586 F.3d 613, 617 (8th Cir.2009) (stating “Congress has not set forth which party has the burden of proving whether a defendant is competent to stand trial”). In dicta, the United States Supreme Court has indicated that the burden under Section 4241 lies with the defendant. Cooper v. Oklahoma, 517 U.S. 348, 362, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Cooper dealt specifically with an Oklahoma state statute requiring defendants to prove incompetence by clear and convincing evidence rather than burden of proof under the federal statute. But, in the context of discussing the various burdens of proof required by the states, the Supreme Court noted that “Congress has directed that the accused in a federal prosecution must prove incompetence by a preponderance of the evidence. 18 U.S.C. § 4241.” Id. at 361-62, 116 S.Ct. 1373. The Tenth Circuit has not directly addressed which party bears the burden of proof under Section 4241. Citing Cooper, the Tenth Circuit has previously stated that the burden of proving incompetency is on the defendant, but the burden of proof was not directly challenged in any of these cases. See United States v. Sanchez-Gonzalez, 109 Fed.Appx. 287, 290 (10th Cir. Sept. 9, 2004) (stating that the “Government may presume the defendant is competent and require him to shoulder the burden of proving his incompetence by a preponderance of the evidence”); United States v. Montoya, No. 95-8052, 1996 WL 229188 * 2 (10th Cir. May 7, 1996) (stating that the “burden is on the defendant to prove incompetence by a preponderance of the evidence”); see also United States v. Smith, 521 F.2d 374, 377 (10th Cir.1975) (noting that the test for competency “raises issues of fact as to which the defendant has the burden of proof’). In United States v. Wayt, 24 Fed.Appx. 880 (10th Cir. Nov.27, 2001) the defendant argued that the district court had committed plain error by allocating the burden of proof to the defense. The court held that it “need not resolve the question here, because the district court’s allocation of the burden of proof did not affect the outcome of its competency determination.” Id. at 883. The court noted that the “ ‘allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise, that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent.’ ” Id. (quoting Medina v. California, 505 U.S. 437, 441, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (applying state law standard)). Because the evidence was not in equipoise, the allocation of the burden of proof had no impact on the district court’s decision that the defendant was competent. Id. Although the guidance from the Supreme Court and the Tenth Circuit suggests that the burden of proof in this Circuit rests with the defendant, the law on this issue is not settled. This court concludes, however, as stated in Wayt, that it need not weigh in on the issue because the evidence in this case is not in equipoise. The allocation of the burden of proof would have no effect on this court’s conclusion as to Mitchell’s competency to stand trial. FACTUAL SUMMARY The charges against Mitchell arise from the 2002 kidnaping of Ms. Elizabeth Smart, who was then fourteen years old. After the Utah state courts found Mitchell incompetent to stand trial and ineligible for involuntary medication, the United States Attorney’s Office proceeded with this federal prosecution. At the federal competency hearing, this court heard a substantial amount of evidence that was not part of the state court record. Three new competency evaluations were prepared by mental health experts in connection with the federal proceeding. And, in addition to the testimony of mental health experts, the court heard evidence from Utah State Hospital staff, co-Defendant Wanda Barzee, and Ms. Smart. The court also heard evidence regarding the cultural context of Mitchell beliefs, their similarity to the beliefs of other leaders of schismatic fundamentalist Mormon sects, and details of Mitchell’s failed plea negotiations with the State of Utah that were not revealed in the state competency hearing. A. Observations of Mitchell’s Behavior During Elizabeth Smart’s Captivity Elizabeth Smart testified that in the early morning hours of June 5, 2002, she awoke to find Brian David Mitchell in her bedroom holding a knife to her throat. (10/01/09 Tr. at 5-6.) Elizabeth’s younger sister was in the bed next to her. (Id. at 6). Elizabeth stated that while holding the knife against her neck, Mitchell ordered her to get up quietly and come with him or he would kill Elizabeth and her family. (Id.) Elizabeth stated that Mitchell later told her that “ ‘if [she] would have screamed, he would have killed [her], he would have killed [her] family, and he would not have had any trouble killing [her].’ ” (Gov’t Ex. 20 at 8.) Elizabeth testified that Mitchell claimed he was taking her hostage and holding her for ransom. (10/01/09 Tr. at 7.) Days later, when Elizabeth asked Mitchell why he had told her this, he replied that if he “had told [her] he was taking [her] as his wife [she] would not have come as easily, and if [she] thought [she] was being ransomed, [she] would have hope of coming back.” (Gov’t Ex. 20 at 8.) Elizabeth further testified that Mitchell continued to threaten her and hold the knife to her back as he took her away from her home and led her up into the mountains. (10/01/09 Tr. at 8.) When she told him, ‘You know, you’re going to go to jail for this if you get caught,” he replied, ‘Yes.” {Id. at 10.) Elizabeth said that she tried to persuade him to release her, promising to speak on his behalf if he let her go right then. {Id.) As Elizabeth testified, “He didn’t let me go, and he knew full well he was going to go to jail.” {Id.) Elizabeth testified that Mitchell was careful to avoid being caught. (10/01/09 Tr. at 9.) She observed that he was dressed in dark clothing, including sweat pants, a sweat shirt, tennis shoes, and a stocking cap. {Id. at 6-7 & 9.) He also forced her to duck down behind some bushes before crossing the street while he waited for a police car to pass. {Id. at 9.) While they were hiding, Mitchell prayed that they would not be seen. They then moved at a quick pace up into the mountains. {Id.) When they arrived at the remote camp, Wanda Barzee was waiting. {Id.) Inside the tent, Barzee instructed Elizabeth to change out of her pajamas into a robe-type garment. (10/01/09 Tr. at 10.) When Elizabeth refused, Barzee threatened to have Mitchell come in and rip her pajamas off. {Id.) Elizabeth reluctantly changed into the robe. {Id.) Mitchell entered the tent and performed what purported to be a brief marriage ceremony. {Id.) Barzee was present and Elizabeth had the impression that the ceremony was to “placate Wanda” by “giving the appearance that he was doing what the Lord had told him to do.” {Id. at 67-68.) Mitchell stated that Elizabeth “would be bound in heaven as [she] would be here on earth to him to be his wife.” {Id. at 44.) Elizabeth “screamed no,” but Mitchell again threatened that he would kill her if she screamed. {Id. at 44.) Elizabeth testified that he then raped her. {Id. at 10.) Elizabeth testified that to keep her from escaping, Mitchell bolted a large, 10-foot cable onto her leg. (10/01/09 Tr. at 10.) The cable connected to a lock that could slide along a second, 15 — to 20-foot cable that was strung between two trees. {Id. at 10-11.) Mitchell was able to disconnect the cables by taking off the lock, but he kept the key to the lock around his neck. {Id. at 10.) Elizabeth stated that Mitchell told her that “he would kill anybody who came into the camp or he would kill [her] if [she] ever tried to escape or yelled out or did anything that was not in accordance with what he wanted.” (10/01/09 Tr. at 35.) When searchers came near the camp, Elizabeth testified that Mitchell threatened to kill her or her family if she called out and alerted searchers to their position. (Gov’t Ex. 20 at 8.) As time went on, Elizabeth said Mitchell showed her newspaper articles about the search efforts to demonstrate that no one was able to find her despite the massive efforts devoted to her recovery. {Id. at 11.) Elizabeth also stated that Mitchell forced her to burn the red pajamas she had worn to the camp, told her to refer to her parents as Ed and Lois, and instructed her that she must cast off her “false traditions.” {Id. at 9.) Elizabeth “began to absorb intense religious indoctrination from Brian Mitchell from almost immediately after she was taken.” {Id. at 8.) Because of Elizabeth’s upbringing in the Church of Jesus Christ of Latter-day Saints (“LDS Church”), many of the ideas of which Mitchell spoke were familiar to her, such as revelations, priesthood blessings, religious missions, and believing in scripture beyond the Bible. (10/01/09 Tr. at 66-67.) Mitchell and Barzee told Elizabeth that Mitchell was Immanuel David Isaiah, a prophet and the Davidic King, and they regularly read to Elizabeth from Mitchell’s book of scripture, the Book of Immanuel David Isaiah (“BIDI”). (Id. at 46-47.) Mitchell told her that in seven years “he would come forth with Wanda and his seven new wives, and [they] would all testify in his behalf.” (Id. at 59.) He told her “that there would be many people who believed us, but many people who didn’t believe us. And there would be a mob that would come and stone him, and he would lay in the streets for three days being dead, and then he would rise up and he would be untouchable.” (Id. at 59.) He told her that he would then fight and kill the antichrist. (Id. at 59.) Mitchell and Barzee continually repeated their religious ideas to Elizabeth. (Gov’t Ex. 20 at 11.) They encouraged her to write in her journal and would review her entries, which eventually began to reflect at least a surface acceptance of the religious beliefs she was being taught. (Id.) Elizabeth felt that Mitchell manipulated her into disclosing enough information about her 15-year-old cousin to enable Mitchell to attempt to kidnap her as he had Elizabeth. (Id.) After many weeks of being physically bound, Mitchell released Elizabeth from the cable. (Gov’t Ex. 20 at 10.) Sometime after the cable was removed, Elizabeth tried to escape while Mitchell and Barzee were arguing. (Id. at 11.) Mitchell saw her and threatened, “ ‘[I]f you take one more step further, there will be an angel at the door that will cut you down. If you ever run away you will be killed and your family will be killed.’ ” (Id.) Elizabeth returned and did not try to run away again. (Id.) Elizabeth further testified that Mitchell would go into the city to steal provisions— which he referred to as “plundering”— while Barzee stayed in the camp to guard Elizabeth. (Gov’t Ex. 20 at 11.) Eventually, Mitchell and Barzee began going into the city together and took Elizabeth with them because she could not remain alone at the camp. (Id.) He forced Elizabeth to wear a headdress with a veil and another veil covering her mouth. (10/01/09 Tr. at 68.) Mitchell ordered her not to speak. (Gov’t Ex. 20 at 11.) She was convinced that Mitchell would hurt her and her family if she did not obey him. (Id.) Throughout Elizabeth’s. captivity, Elizabeth testified that Mitchell’s predominant focus was sex. (10/01/09 Tr. at 11.) She recounted that Mitchell raped her up to three to four times a day. (Id.) Elizabeth cannot recall a time when Mitchell did not talk about sex or want sex. (Id. at 12.) He also used crude and vulgar language, showed her pornography, and used drugs and alcohol to lower her resistence. (Id. at 12-13.) He stated that it was to humble her and bring her low to the dust. She said that Mitchell tried to make her feel that having sex with him was normal and that it was just what a husband and wife do. (Id. at 13.) Elizabeth recalled that once she bit Mitchell when he was raping her. He threatened to stop having sex with her and claimed that she would be “the most miserable woman in the world.” (Id. at 16.) But she testified that Mitchell still continued to rape her repeatedly on a daily basis. (Id.) Mitchell would periodically leave the camp to get supplies and “to minister to the world.” (10/01/09 Tr. at 13.) Generally, Elizabeth and Barzee were without food until Mitchell returned with something to eat. (Id. at 14.) After giving them food, the first thing Mitchell would do was rape Elizabeth. (Id.) On several occasions when he returned, Elizabeth remembered him coming up the mountainside yelling, “I’m going to fuck your eyes out.” (Id.) Elizabeth believed that Mitchell “used religion to get what he wanted. He had an excuse for everything he did with a religious side to it.” (10/01/09 Tr. at 12.) For example, when he showed Elizabeth pornography, he said that she “had to be humbled and to sink below all things before rising above all things.” (Id.) Elizabeth testified, “Anything that I showed resistence or hesitation to, he would turn to me and say, the Lord has commanded you to do this. You have to experience ... the lowest form of humanity to experience the highest.” (Id.) During her nine months in captivity, Elizabeth experienced Mitchell as “religious but not spiritual, not Christlike.” (10/01/09 Tr. at 16.) Instead, she described him as “[e]vil, wicked, manipulative, sneaky, slimy, selfish, greedy, not spiritual, not religious, not close to God.” (Id. at 42.) Mitchell claimed to be the Davidic King, the Lord’s servant, and that he was doing the Lord’s work. (Id. at 17.) Yet Elizabeth observed that Mitchell never showed empathy for others and never performed an act of charity or kindness toward another person. (Id. at 16-17.) One night, Mitchell gave Elizabeth too much alcohol to drink and she became ill. (Id. at 20.) Mitchell did not care for her, but instead allowed her to lie face down in her own vomit all night. (Id.) When she awoke the next morning, Mitchell told Elizabeth that it was showing her “true state.” (Id.) Whenever Elizabeth questioned him on the inconsistencies between his conduct and the principles of his religion, Mitchell told her that “the world was a wicked place and that [she had] been brainwashed by the world, and that he was the Lord’s servant and he was doing the Lord’s will.” (10/01/09 Tr. at 21.) Instead of using religion to help others, Elizabeth testified that Mitchell used it to get what he wanted. (Id. at 17.) Mitchell claimed to receive revelations from God and would also purport to give divinely-inspired blessings to Barzee and sometimes Elizabeth. (10/01/09 Tr. at 18.) He also received a “revelation” that “Immanuel may smoke and drink as he chooses according to his desires.” (Gov’t Ex. 10) Elizabeth noticed that whenever “he wanted something, that’s when he got revelation.” (10/01/09 Tr. at 64.) Mitchell employed blessings in a calculated way to “placate Wanda when she was distraught because [Mitchell] was openly having sex with and pursuing sex with, in an unrelenting way, Elizabeth Smart, notwithstanding how distraught his wife was at witnessing this scene and unable to control it.” (Tr. at 829.) The way that Mitchell “was able to keep this dynamic of the three of them together was in, a very quick fashion, he could produce these elaborate blessings that sounded so spiritual, that sounded so divinely inspired, full of praise for Wanda and her future role, and what was in it for her, her being the mother of Zion and the sacrifices that she needed to make and that these would have a placating effect on Wanda.” (Id.) These blessing “were initiated and timed in a way that struck Elizabeth and had always struck her as manipulative.” (Id.) As Elizabeth explained: Wanda would get very upset with him, and she would just become irate. And the only way to calm her down was to turn to her and say that he needed to give her a blessing. And then in the blessing he would just say what a wonderful daughter of God she was and she was going to be the mother of Zion, and she was going to bring forth his [heir] to the throne and just say what a queen she really was. (10/01/09 Tr. at 19.) Mitchell never dealt with Elizabeth in that way because “he could get her to do anything he wanted simply by brute force and threat.” (Tr. at 829.) Barzee also recalled the way Mitchell manipulated her when Elizabeth was first kidnaped: WELNER: What else were you feeling that you remember? BARZEE: Well, we were given specific instructions of what we were to do once she got there and how could I do that? WELNER: How you could do ... BARZEE: Demonstrate. WELNER: Oh, so you were — you were already told at that point that you had to demonstrate how to have sex? BARZEE: Yeah, when we were told that we were going to go forth and— WELNER: You say “we were told.” Are you saying Brian told you this? BARZEE: Brian told me — Brian told me when we obtained her then — what I was supposed — what I was to do once we got her. I didn’t want to do that. I didn’t want to have to demonstrate in front of her. And at the same time I was told that I was the Mother of Zion (inaudible). (Gov’t Ex. 17e.) On another occasion, Barzee had become distraught over Mitchell’s lust for Elizabeth. (10/01/09 Tr. at 14.) “And so in order to calm Wanda down,” Mitchell told Barzee that he had received a revelation that he was to alternate between Elizabeth and Barzee on a fixed schedule. (Id. at 14-15.) Under what Mitchell claimed to be a divinely-revealed sex schedule, approximately every other night was set aside for Mitchell to spend with Barzee, but Elizabeth testified that there was never “an actual 24-period that he wasn’t able to rape” Elizabeth. (Id. at 15.) During one of the times set aside for Barzee to receive Mitchell’s attentions, Mitchell took Elizabeth away from camp to an underground stream to get water. (10/01/09 Tr. at 15.) On the way, Mitchell turned to Elizabeth and told her he needed to have sex with her right then and that “nobody would find out.” (Id.) Elizabeth further observed that Mitchell never received a revelation that he should give up anything, such as sex, alcohol, or drugs. (10/01/09 Tr. at 19.) Mitchell never undertook a religious fast (except when they had no food to eat) nor did he ever refrain from speaking for long periods of time. (Id. at 19-20.) In retrospect, Barzee stated that Mitchell’s religious belief were manipulative and deceitful: WELNER: Okay. Now, we talked before about manipulation, and we talked before about your — your own faith. Now, as — as we meet today, when you reflect on Brian Mitchell, do you feel that his faith was actually false? BARZEE: Yes. WELNER: Can you explain uh — how you see it now? BARZEE: Well, he — he refers to um— that he believes he’s the mouthpiece of God, that he is a true prophet. And uh, yeah, that he has all the keys of the kingdom to do whatever the Lord wills him to do. WELNER: What do you think? BARZEE: I think that he’s false um— WELNER: Do you think that he thinks he’s false? Do you think he[’s] real— do you think that he knows in his heart that he’s manipulative? BARZEE: I think he knows in his heart that he’s manipulative.... Um — it’s very subtle. He’s extremely deceitful, I think. (Gov’t Ex. 17g.) Elizabeth observed that Mitchell was manipulative and turned religion on and off in order to get the things that he wanted. (10/01/09 Tr. at 21 & 23.) For example, he used religion as a means to get his basic needs met. (Id. at 17-18.) It served Mitchell well in panhandling, as people responded generously to his appearance of humble spirituality. (Gov’t Ex. 20 at 13.) Mitchell also befriended a young man at a grocery store, who would help Mitchell steal food by not passing the items over the scanner at check-out. (10/01/09 Tr. at 21-22.) Mitchell spoke to the young man about religion and spirituality and how “God is no respecter of persons” even if they smoke and drink. (Id. at 23.) In Elizabeth’s estimation, it was because of Mitchell’s acceptance that the young man was willing to help him. (Id.) Mitchell also used religion when confronted by a police officer in the Salt Lake City library. (10/01/09 Tr. at 31 & 60.) When the officer asked Elizabeth to remove the veil and head covering that Mitchell made her wear, Mitchell told the officer that wearing the veil was part of their religion and that there was no possible way she could take it off. (Id. at 30-31.) Mitchell managed to convince the officer that Elizabeth was his daughter visiting from a school back east, and they were allowed to go on their way. (Gov’t Ex. 20 at 12.) Elizabeth testified that Mitchell was always quick on his feet and lied easily. (10/01/09 Tr. at 34.) He had the ability to adapt to his surroundings and talk his way out of any situation. (Id. at 37-38.) He was a convincing liar, and Elizabeth had the impression that Mitchell enjoyed fooling others. (Id. at 32-34.) Mitchell would laugh at the way others thought they were so smart, while he “could dance circles around them.” (Id. at 32.) Indeed, Elizabeth recognized that Mitchell was capable and intelligent. (10/01/09 Tr. at 33-34.) He had the ability to argue on his behalf and was forceful and determined in an argument. (Id. at 38.) Elizabeth observed that Mitchell thought highly of himself and always had to be right. (Id. at 17 & 32.) He held himself out as an authority on every topic, whether religious or not. (Id. at 32-33.) Mitchell spoke about how people thought and mentioned reading books on subjects such as hypnosis. (Id. at 38-39.) Mitchell spoke about his experiences and knew a great deal about many different subjects. (Id. at 34.) In particular, Mitchell had knowledge of the legal system and explained what would happen if he was apprehended. (Id. at 42.) Elizabeth testified that Mitchell knew that what he was doing was against the law and was determined not to get caught. (10/01/09 Tr. at 35, 42 & 68.) He gave Elizabeth specific instructions on what to do if they were confronted by law enforcement. (Id. at 35.) He instructed Elizabeth to give her name as Augustine Marshall and to refer to him as her father and to Barzee as her mother. (Id.) He told her to tell anyone who asked that they were traveling ministers with no permanent address and that she was home-schooled. (Id.) Mitchell would quiz Elizabeth on what she was to say if they were ever confronted. (Id. at 37.) Moreover, Elizabeth testified that Mitchell never introduced her as his wife. (Id.) Elizabeth never observed Mitchell tell anyone, besides her and Barzee, that he had been commanded to marry several young girls and that he was to plunder or steal his brides. (Id.) Elizabeth testified that Mitchell himself used several different aliases. (Id. at 36.) Besides Immanuel David Isaiah, Mitchell also used the names Peter Marshall, David Shirlson, and Michael Jensen. (Id. at 36-37 & 61.) There was never a time when Barzee or Elizabeth had to intervene on Mitchell’s behalf because he was out of control, bewildered or confused. (Id. at 30 & 32.) During the nine months of her captivity, Elizabeth, Barzee and Mitchell encountered a number of individuals. Elizabeth stated that not one of the people they encountered ever suggested that Mitchell needed professional help or that he should be taken to a hospital. (Id. at 33.) After being confronted by the police officer in the Salt Lake City library, Mitchell and Barzee took Elizabeth, disguised in a veil, to southern California. (10/01/09 Tr. at 12, 26.) Upon arriving in Lakeside, California, Elizabeth testified that Mitchell began “looking for another young girl to kidnap, and he went to an LDS ward posing as an investigator,” that is, a person who is interested in learning about the LDS church. (Id. at 17 & 52.) Instead of his religious robes, Mitchell donned regular Western clothing and tied back his long hair and beard. (Id. at 24.) Posing as an investigator, Mitchell “used religion to get into the home of the Kemp family.” (10/01/09 Tr. at 17.) On December 8, 2002, Mitchell attended an LDS church service and study group led by Virl Kemp. (Gov’t Ex. 20 at 13.) Kemp did not make any connection between Mitchell and the man in robes he had seen walking in Lakeside a few weeks before. (Id.) Mitchell represented himself as someone unfamiliar with the Mormon faith and Kemp invited Mitchell to his home for dinner with some LDS missionaries. (Id. at 13.) At the dinner, Mitchell introduced himself as Peter, said that he was traveling alone, and provided a back story about having a family in the East where “everything had fallen apart.” (Gov’t Ex. 20 at 13-14.) Mitchell was rational, composed, and polite. (Id. at 14.) He did not preach and “ ‘there was nothing shocking he revealed about his beliefs or habits.’ ” (Id.) Religion was discussed and Mitchell “ ‘pretended, quite well, to know nothing about the Mormon faith.’ ” (Id. at 13-14.) Mitchell later boasted to Elizabeth that he had the Kemps deceived. (10/01/09 Tr. at 35.) While at the Kemp home, Mitchell saw a picture of their 12-year-old daughter. (10/01/09 Tr. at 17; Gov’t Ex. 20 at 13.) Mitchell asked about the girl and was told that she was Mrs. Kemp’s daughter from a previous marriage who spent every other weekend and every Wednesday with the Kemps. (10/01/09 Tr. at 24-25.) Sometime in February, Elizabeth testified that Mitchell returned to the Kemp home at night, dressed in dark clothes, in an attempt to kidnap their daughter as he had kidnaped Elizabeth. (10/01/09 Tr. at 53; Gov’t Ex. 20 at 14.) Mitchell looked for a way to get into the house, but everything was locked. (10/01/09 Tr. at 53.) He eventually found an unlocked window or sliding door, but as he began to open it, he heard a loud snoring. (Id.) Fearing that an older male was inside, Mitchell left. (Id.) When he returned to camp, he told Elizabeth and Barzee that “the Lord was just preparing him, that it was all in preparation for the next young woman.” (Id.) On another occasion, Mitchell, Barzee and Elizabeth were invited into the home of a Seventh-Day Adventist. (Gov’t Ex. 20 at 78.) “The family spoke about religion all night, and Brian Mitchell simply agreed with the host.” (Id.) “Elizabeth explained that they needed a place to stay, and she felt [Mitchellj’s agreeable nature toward a contrary ideology was affected in order to gain them lodging.” (Id.) Like religion, Elizabeth observed that Mitchell was also capable of turning his singing on and off and would use it to manipulate people and situations. (10/01/09 Tr. at 30.) For example, Mitchell would sometimes sing when he encountered people who did not agree with him. (Id. at 25.) According to Elizabeth, he sang when he wanted to sing, not because he could not contain himself. (Id. at 48.) Elizabeth never saw Mitchell’s singing get in the way of something he wanted. (Id. at 30.) For example, she testified that he never burst into singing when he was trying to secure sex, food, drugs, alcohol, or transportation. (Id. at 31.) And Mitchell never burst into singing when confronted by law enforcement. (Id. at 32.) In mid-February, Mitchell told Barzee and Elizabeth that he was going down to the town of Lakeside to “minister.” (10/01/09 Tr. at 27.) Mitchell later recounted to Elizabeth that upon arriving in town, he bought beer from a convenience store, stole prescription medication from a woman pushing a cart when she left the cart unattended, took some of the pills, and broke into a nearby church. (Id. at 27-28) Mitchell passed out and was awakened the next morning by police officers, who arrested him for trespassing. (Id. at 28.) Mitchell was booked into jail and provided with a court appointed attorney, David Lamb. Lamb found Mitchell to be “a pleasant, pathetic person, who showed no signs of aggression or violence, and seemed very peaceful, friendly, and remorseful.” (Gov’t Ex. 19 at ¶ 1.) Mitchell understood why he was there, the process he was involved with, and that Lamb was his attorney. (Id. at ¶ 4.) Lamb and Mitchell discussed the case and the best way to proceed. (Id. at ¶ 2.) Mitchell would later tell Elizabeth that his lawyer was a “bright, young man” who “advised him to plead guilty.” (10/01/09 Tr. at 29.) When Mitchell appeared in court, he confirmed that he understood the charges and provided the judge with “very convincing and appropriate answers that happened to be completely false.” (Tr. at 655-56.) He used the alias Michael Jensen and characterized himself as an itinerant preacher. (Tr. at 653-54; Gov’t Ex. 18.) He provided no information that would connect him to Utah, the mainstream or fundamentalist LDS faith, or plural marriage. (Tr. at 653; Gov’t Ex. 18.) He told the judge that he was traveling with his wife and daughter and that they were staying with friends in the area. (Tr. at 655; Gov’t Ex. 18.) Mitchell presented himself “as a very repentant individual” and claimed that he had simply fallen off the wagon after not having a drink in twenty-two years. (Id.) While the judge looked over Mitchell’s case file, there was a prolonged silence, which is typically “very stressful when you’re sitting there in a very high tense environment.” (Tr. at 654; Gov’t Ex. 18.) Rather than breaking into singing or causing some other disruption, Mitchell remained very quiet. (Tr. at 654; Gov’t Ex. 18.) He not only tolerated the “very long, very uncomfortable silence,” he “looked completely relaxed and comfortable.” (Id.) During the videotaped court appearance, Mitchell’s behavior was entirely appropriate. (Tr. at 653-54; Gov’t Ex. 18.) He did not express any rejectionist philosophy or claim that he was subject only to God’s law. (Tr. at 939; Gov’t Ex. 18.) Instead, Mitchell was respectful and deferential to the authority of the court. (Tr. at 939; Gov’t Ex. 18.) Although Lamb generally avoids having clients address the judge directly, out of fear that they could hurt their chances, “[njothing Mitchell said sounded inappropriate and there was nothing that made Mr. Lamb think as Mitchell’s lawyer that he should stop him.” (Gov’t Ex. 19 at ¶ 3.) At one point, when Mitchell began to explain about his ministry, Lamb interrupted and redirected him to answer the judge’s question. (Tr. at 656; Gov’t Ex. 18.) Mitchell understood his attorney’s cue, and responded as his attorney wanted. (Id.) Mitchell pleaded guilty and was released to return to the camp where Barzee was keeping guard over Elizabeth. (Gov’t Ex. 20 at 14.) Elizabeth testified that she realized that she was less likely to be found in San Diego, so she tried to convince Mitchell to return to Utah. (10/01/09 Tr. at 58.) Because Mitchell “had used religion to justify ... pretty much anything he wanted to get away with,” Elizabeth “decided to try to use his tactic.” (Id.) She told Mitchell that she had a strong feeling that they needed to go back to Salt Lake City and suggested that they hitchhike so that she could have the experience of “sinking] below all things to rise above all things.” (Id.) On March 3, 2003, the three began to make their way back to Utah. (Gov’t Ex. 20 at 15.) As they passed through Las Vegas, someone reported to police that a young female wearing a wig and heavy makeup was traveling with a robe-clad older couple. (Id.) When an officer responded, Mitchell told him he was a traveling “preacher.” (Id.) Mitchell told the officer that their names were Peter, Juliette, and Augustine Marshall. (Id.) The officer checked the names and dates of birth Mitchell provided against available records and allowed them to go on their way. (Id.) On March 12, 2003, Mitchell was spotted walking along State Street in Sandy, Utah, with two women dressed in robes. (Tr. at 436-38.) Sandy City Police Officer Troy Rasmussen responded and questioned the three individuals about their identities. (Id.) Mitchell provided a false story and stated that his name was Peter Marshall and that Elizabeth was his daughter Augustine. (Gov’t Ex. 20 at 15.) Even when Officer Rasmussen directed questions toward Elizabeth and Barzee, Mitchell would answer. (Tr. at 437-38.) As a result, Officer Rasmussen separated Mitchell from the group by taking him out of earshot of the women. (Id.) During the ensuing private conversation, Mitchell would answer as a normal person would when asked general questions about his name, travels and companions, but would “go into character or persona like he was a preacher” when he was confronted or asked more direct questions. (Tr. at 439-40.) To Officer Rasmussen, it seemed that the more he cornered Mitchell with questions, the more he “would be evasive by saying religious things.” When other people came within earshot, Mitchell “would go into his preacher persona.” (Id.) Officer Rasmussen believed Mitchell “was being deceptive, and the more [he] questioned him and cornered him, caught him in the lies, he would avoid answering the question and then pretended, started to pretend to be a street preacher.” (Tr. at 444.) Elizabeth identified herself as Augustine Marshall and was reluctant to admit who she really was, even though she wanted to be discovered. But, once the three were taken into custody, Elizabeth admitted her true identity. (Gov’t Ex. 20 at 15.) B. Mitchell’s Life History To some extent, each of the mental health evaluators provided a life history of Mitchell. Some appear to have merely used others previous findings without further investigation. Dr. Weiner conducted the most thorough investigation and compiled the most extensive history of Mitchell’s life. 1. Adolescence Mitchell was born in 1953 to Shirl Mitchell, a social worker, and Irene Mitchell, a high school teacher. (Def. Ex. J at 1 & 8.) He and his five siblings were raised in the LDS Church. (Def. Ex. J at 8.) His parents, however, were not especially active church members and his father professed religious beliefs that were decidedly out of the mainstream. (Gov’t Ex. 20 at 51.) Shirl, who was educated in philosophy, wrote “a 1066 page tome entitled, Spokesman for the Infant God and Goddess," in which he “represented himself as a divine emissary.” (Id.) Shirl was “a proponent of a regimented vegetarian diet as well.” (Id.) Despite his eccentric beliefs, Mitchell observed that his father “put[ ] on a good show for people outside the home” and that, when Mitchell went to his office, he could hardly recognize his father at work. (Def. Ex. E at 2.) As an adolescent, Mitchell identified with his father, adopted his father’s diet, and took on the role of the “black sheep” of the family. (Gov’t Ex. 20 at 51; Def. Ex. J at 8; Def. Ex. X at 4-5.) Even as a young man, Mitchell was “very verbally skilled.” (Tr. at 1032.) Mitchell’s sister described him as a “con man” who could “feed [her] a line and stick to it for a long [time].” (Tr. at 1028-30.) He was also verbally and physically abusive at home. (Gov’t Ex. 20 at 52.) When he was referred for juvenile intervention at age 15, his family characterized him as “cruel and sadistic toward his mother and siblings.” (Id.) Mitchell was described as creative and was known to accomplish grandiose projects, like building a hot air balloon. (Def. Ex. X at 10.) Despite his bright mind, Mitchell did poorly in school and dropped out of high school at age 16. (Gov’t Ex. 20 at 52.) He later obtained his GED and completed 46 credit hours at the University of Utah with a 2.6 grade point average. (Gov’t Ex. 20 at 53.) Sexual addiction was also a problem for Mitchell. (Tr. at 1031.) After dropping out of school, Mitchell was arrested for soliciting sexual activity from his four-year-old neighbor after he brought her into his home and instructed her to touch his penis. (Gov’t Ex. 20 at 52.) The probation officer assigned to the case became concerned that Mitchell’s behavior was “bordering on psychotic” and referred him to a psychologist. (Def. Ex. X at 5; Gov’t 20 at 52.) The psychologist, Dr. Tanya Thomas, did not diagnose Mitchell with a psychotic condition but with “Behavior Disorder of Adolescence.” (Def. Ex. E at 7.) Dr. Thomas worked with Mitchell from July until September 1970. (Gov’t Ex. 20 at 52.) During that time, a marriage counsel- or expressed concern that Mitchell “is an excellent manipulator and he is very verbal and he is afraid that during the time that he has been working with Dr. Thomas that he will manipulate her to gain her confidence and try to use her against the family.” (Def. Ex. F at 4.) Dr. Thomas described Mitchell as a young man “who rather immediately impresses you with his intelligence.” (Def. Ex. E at 2.) She noted that he seemed to “immediately set up a climate of intellectual superiority relating in a logical, emotionally cool manner.” (Id.) Mitchell “admitted that he knew the areas of psychological vulnerability of the other family members, and apparently he derives much satisfaction out of upsetting the other family members through physical and psychological threats of harm.” (Id.) Dr. Thomas had the impression that “he is quite successful in his manipulative and controlling tactics.” (Id.) “Although highly intelligent, he appears to be destructively using his perceptiveness at home to frighten and humiliate the other family members by pointing out their psychological vulnerabilities.” (Id.) Dr. Thomas performed psychological testing that did not identify any sign of psychosis. (Gov’t Ex. 20 at 52.) The testing revealed “only one significant elevation on the A-social Index.” (Def. Ex. E at 3.) This score suggested that “there will be a continuation of the behavioral patterns established unless intervention is achieved.” (Id.) 2. Early Adulthood While Mitchell was still in his teens, his girlfriend, Karen, became pregnant. (Gov’t Ex. 20 at 52.) The two eventually married and had two children together. (Id.) Mitchell and Karen were heavily into drugs and both were described as irresponsible parents. (Gov’t Ex. 20 at 53; Def. Ex. X at 10-11.) The two divorced in 1975 and Mitchell was awarded custody of the children. (Gov’t Ex. 20 at 53.) When Karen remarried in 1977, she petitioned for reconsideration, and the court awarded her custody in 1979. (Id.) After the court awarded custody to Karen, Mitchell kidnaped their two children and moved to the east coast. (Gov’t Ex. 20 at 53.) During this time, Mitchell moved from place to place and continued using drugs. (Id.) At one point, he lived with the Hare Krishna in West Virginia. (Id.) His second wife, Debbie, recalled that Mitchell later bragged “about how he fooled authorities for when he was not [back] east, he would hide in his mother Irene’s home.” (Id.) During this time, Mitchell wrote to his mother in Utah. In a letter written in November 1977, Mitchell explained his choice to grow a beard and long hair: As for my beard and long hair, I think I’m more handsome without them, as well, however, that is not the image I’m after at the moment. Maybe I want to look like a serious fellow and there are other reasons as well, as you know I like acting, my hair and beard is part of a new act. (Gov’t Ex. 24.) S. Return to Utah Around age 26, Mitchell returned to Utah. (Gov’t Ex. 20 at 54.) He stopped using drugs, became active in the LDS Church, and met his second wife, Debbie. (Id.) In January 1981, Mitchell received the Melchizedek Priesthood in the LDS Church. (Id.) The following month, he married Debbie. (Id.) Debbie wanted to marry in the LDS Church, but Mitchell “suggested they could not because he had a ‘sexual problem.’ ” (Id.) When Mitchell married Debbie, she had three daughters from a previous marriage. (Gov’t Ex. 20 at 54.) One of Mitchell’s step-daughters later disclosed that Mitchell had molested all three sisters. (Id.) She recalled that “she was repeatedly molested from within weeks of the marriage, abuse which persisted from age 8-12, and her efforts and those of her sister ... were powerless to get him to stop.” (Id. at 56.) According to his step-daughter, Mitchell told her that no one would believe her if she told. (Id.) Years later, Barzee’s sister, Evelyn Camp, found a photo of two young girls, approximately seven or six years old, in a box of pictures belonging to Barzee and Mitchell. (Tr. at 238-240.) The two girls were naked, had unhappy expressions on their faces, and Camp found the photo very disturbing. (Tr. at 239^10.) Debbie was resentful of Mitchell’s two children from his previous marriage and the large family was under significant financial strain. (Gov’t Ex. 20 at 54-55.) In 1983, Mitchell decided to put his two children up for adoption. (Id. at 55.) Mitchell ultimately “opted for foster care and adamantly refused to allow visitation by his mother, Irene.” (Id.) Mitchell’s mother and sister challenged Mitchell’s decision, claiming he was mentally ill. (Gov’t Ex. 20 at 54.) An evaluation was completed by psychologist Randy Oster on December 22, 1983. (Id. at 55.) The evaluator concluded that Mitchell was not mentally ill. (Id.) Mitchell was allowed to relinquish custody of his children. (Id.) He and Debbie went on to have two more children of their own. (Id.) Mitchell and Debbie’s marriage was tumultuous and marked by abuse. (Gov’t Ex. 20 at 55-56.) Mitchell was controlling and frequently belittled Debbie. (Id.) He also preyed on her fears. (Id. at 55.) Knowing that Debbie was afraid of mice, he once returned home with a live mouse in a jar. (Id.) On another occasion, he left 50 dead mice in the oven neatly laid out on a cookie sheet for her to find. (Id.) Throughout his marriage to Debbie, Mitchell held himself out to be an active LDS Church member — he talked like an active church member and accepted church callings. (Tr. at 252.) However, his LDS Stake President Paul Mecham noticed that Mitchell did not attend church services with Debbie and did not perform the callings as a normal church member would. (Tr. at 252-53.) Mecham also noticed that Mitchell was adept at changing his behavior. When Mecham first observed Mitchell at church, he seemed easy going and quiet. (Tr. at 250. ) Later, in a social setting, he was surprised to see Mitchell being very outspoken, speaking loudly, gesturing and smiley faced. (Tr. at 250.) Then he noticed that the man to whom Mitchell was speaking was also exuberant and it “dawned on” Mecham that Mitchell was mirroring or mimicking the man’s behaviors. (Tr. at 250-51.) As Mecham observed Mitchell over time, he discovered this pattern of mirroring was ingrained and allowed Mitchell to ingratiate himself with others quickly and effectively. (Tr. at 251. ) Eventually, Mecham became aware of allegations of sexual impropriety concerning Mitchell and called him in for an interview. (Tr. at 253.) After a preliminary conversation, Mecham raised the issue of the allegations and used the word “improper.” (Id.) Mitchell’s normally relaxed demeanor changed “in a flash.” (Id.) He “spoke loudly” to Mecham and within 60 seconds got up and left the office. (Id.) Within a few days, Mitchell had left Debbie and divorce proceedings were underway. (Tr. at 254.) During the divorce, Debbie alleged that Mitchell had sexually abused both of their biological children. (Gov’t Ex. 20 at 55.) She claimed that their three-year-old son had told her that Mitchell had been masturbating him and that their one-and-a-half year old daughter asked her to tell Mitchell “don’t owie my peepee anymore.” (Id.) The evaluating case worker was unable to verify the abuse, but noted that Mitchell and Debbie’s son was more sexually interested than would be expected of someone his age. (Id.) Mitchell later told Elizabeth that he had been accused of molesting his second wife’s youngest daughter and that he was able to walk away from that. (10/01/09 Tr. at 39.) A Marriage to Wanda Barzee Mitchell met Wanda Barzee at an LDS divorce support group. (Gov’t Ex. 20 at 58.) Barzee was a devout Mormon and an aspiring church organist, but had a myriad of personal problems. (Id.) Among other things, she had just emerged from an abusive relationship to a controlling man and had a history of psychiatric problems. (Id.) Mitchell married Barzee in November 1985, on the day his divorce from Debbie became final. (Id.) After he and Barzee married, Mitchell became increasingly active in the LDS Church and held positions such as counsel- or in the stake mission presidency, member of the stake high council, and counsel- or in the bishopric of his ward. (Gov’t Ex. 20 at 59.) He was also an ordinance worker at the LDS Temple. (Gov’t Ex. at 58.) Mecham, Mitchell’s former stake president, was surprised to learn that Mitchell was attending the LDS Temple despite the fact he did not hold a temple recommend at the time he left Mecham’s stake under a cloud of sexual abuse allegations. Although it was the general Church practice for a moving member’s new stake president or bishop to check with the member’s former church leaders to ascertain worthiness, no such contact was made in Mitchell’s case. (Tr. at 254.) Mecham was “amazed that with his background, he was able to obtain a temple recommend. But he was very capable of keeping up a facade. It was easy to see him as a good kid, he was polite, very normal, and handled himself well; it’s understandable that he could lie and get himself over.” (Gov’t Ex. 20 at 59.) The more appointments he had in the church, the more Mitchell “related with a standing that was beyond what he had achieved.” (Gov’t Ex. 20 at 58.) Mitchell “ ‘would push the limits of bounds, he would jump over others to do things,’ and would undercut the LDS infrastructure to advance himself.” (Id.) a. Breaking Away from the Mainstream At home, Mitchell expressed anger at the Church for not giving him a higher calling, or leadership role. (Id.) By the late 1980s, Wanda’s daughter, LouRee Gayler, testified that Mitchell was already referring to himself as a prophet. (Tr. at 196.) LouRee observed that being a prophet “ ‘became an excuse for anything they did because they were higher than that. Being a prophet meant never admitting anything was wrong.’ ” (Gov’t Ex. 20 at 60.) Mitchell began to experience a “deepening identification with fundamentalist LDS.” (Tr. at 896.) He started attending the American Study Group (“ASG”) meetings led by Sterling Allan. (Tr. at 642; Gov’t Ex. 5, Appx. A at 3.) The ASG was “a fundamentalist LDS group” that was “way out on the edge of the LDS culture.” (Tr. at 644.) Like other fundamentalist LDS groups, members of the ASG believed that the LDS church was “out of order” and that LDS scripture had prophesied that “One Mighty and Strong” would come to “set things straight.” (Gov’t Ex. 5, Appx. A at 3.) Indeed, Allan entertained the idea that he was the One Mighty and Strong and personally knows over 100 people who have made such a claim. (Tr. at 644-55 & 1096; Gov’t Ex. 5, Appx. A at 3.) Mitchell also became involved with C. Samuel West of Orem, Utah. While the West family regularly attended their LDS church, their beliefs and practices were outside that of the mainstream church. (Tr. at 266-67.) Dr. West, as he is known to his adherents, was “a naturopath proponent of his own school of healing called lymphology.” (Gov’t Ex. 20 at 63.) Lymphology focuses on “the role of the Lymphatic system in the body for draining out poisons and keeping the body healthy.” (Gov’t Ex. 5, Appx. A at 3.) The practice of lymphology involves massage, deep breathing, and bouncing. (Tr. at 263-65.) The theory is explained in Dr. West’s book, The Golden Seven Plus One, which his family accepted as scripture. (Tr. at 266.) Dr. West founded the International Academy of Lymphology, which is not just a school of healing, “but an actual fundamentalist sect ... that asserts to reflect the science behind Christ’s miracles.” (Gov’t Ex. 20 at 64.) Its “teachings were grounded in Mormon theology, [as] were some of its practices, such as giving testimony.” (Id. at 69.) Aside from lymphology, the Wests also espoused fundamentalist LDS beliefs. They believed that Ezra Taft Benson was the last true prophet of the LDS Church and that the LDS Church had gone astray. (Tr. at 268.) The Wests also believed the LDS church should actively be practicing the law of consecration and polygamy. (Tr. at 269.) Mitchell was also “influenced by the Idaho-based Bo Gritz (whom he later characterized as a prophet) Patriot movement, which advocated individual freedoms, gun rights, not paying taxes, and living an undocumented lifestyle with no recorded address or social security number.” (Gov’t Ex. 20 at 63.) Mitchell traveled north to visit the Bo Gritz group in Idaho. (Tr. at 206 & 224.) b. Home Life “The home of Wanda Barzee and Brian Mitchell was a study in things are not as they seem.” (Tr. at 894.) LouRee Gayler testified that Mitchell “always tried to put on an image for people, whether it was church or with his co-workers.” (Tr. at 182.) Mitchell was involved in the church and “would represent a very benign and peaceful patina, but in the home there was everything from the mixture of pornography and open sex, and even solicitation to join in, to deprivation, restriction of privileges,” and demands on the children. (Tr. at 894.) Mitchell’s stepdaughter, LouRee Gayler, began living with Mitchell and Barzee in 1986 when she was twelve years old. (Tr. at 181-82.) She described Mitchell as “dominating” and recalled hearing her mother screaming at night as if she was being held down. (Tr. at 189.) She described how Mitchell and Barzee forced her to work and would not allow her to go anywhere except work and church. (Tr. at 183.) In the home, “[rjeligion was everything.” (Tr. at 187.) Mitchell locked out the television, forced them to fast, and insisted that they pray for hours a day. (Gov’t Ex. 20 at 60.) While she was living at the home, Mitchell frequently did things that gave Gayler a “creepy,” “eery feeling.” (Tr. at 183.) Once while Gayler was praying, Mitchell put pornographic photos in front of her and nudged her so that she would open her eyes. (Tr. at 191.) Mitchell would “pierce [her] with his eyes” and would hug her in a way that she felt was inappropriate. (Tr. at 183 & 190.) He would also come into her room at night, pull her close to him, and caress her hair. (Tr. at 190.) Mitchell and Barzee would openly have sex and Gayler felt that they were trying to include her in their sexual activity. (Gov’t Ex. 20 at 61; Tr. at 192.) During the two years that Gayler lived with Mitchell, they moved three times. (Tr. at 186.) Gayler felt that the moves were an effort to conceal the abuse that was occurring in the home. (Id.) She left the home when she was fourteen, after Mitchell and Barzee served her pet rabbit to her for dinner and told her that it was chicken. (Tr. at 192 & 194.) Barzee recalled Mitchell’s reaction to fooling Gayler into eating her pet: BARZEE: I kind of remember Brian gloating about the fact that — how LouRee didn’t even know she was eating a rabbit, how she thought it was a piece of chicken. And, you know, now t