United States v. Bruce Roy Lee

MAGILL, Bеfore ARNOLD Circuit BENSON,* Judges and Senior District Judge.

BENSON, Judge. Senior District Roy Bruce Lee constructed and burned adjacent complex cross to an a number of black families resided. conspiracy against charged He was with rights in of 18 U.S.C. 241 civil violation (count I), housing rights interference with or threat of force in by means of force 3631(a) (count II), of 42 violation U.S.C. § in the commission of a and the use of fire 844(h)(1) felony in violation of 18 U.S.C. § verdict,1 (count III). Upon jury Lee was acquitted I on counts and III convicted appeals his convictions. on count II.2 He challenges validity appeal, Lee On 241 on first amendment 18 U.S.C. § challenges the trial grounds. He also instructions, sufficiency of the court’s evidence, closing argu- prosecutor’s ment, applicability 18 U.S.C. and the I 844(h)(1). affirm as to Count III. reverse as to Count * Benson, imprisonment for twen- was sentenced to 2. The Honorable Paul Senior mandatory, ty-one to a months on count Judge for the District of North States District years He five on count III. term of consecutive Dakota, sitting by dеsignation. years placed supervised release for three Judge Alsop, D. Chief 1. The Honorable Donald pay imprisonment and ordered to follow Minnesota, presiding. for District of special $100. assessment cross, Upon seeing the she said “I

FACTS hope they up don’t come here and burn us Roy Lee was Bruce August On up.” Tr. at 191. She felt the cross burn- Dockter, in girlfriend, Debbie visiting his ing was directed at her. Dockter resided Minnesota. Rapids, Coon Apartments, a three build- at the Tamarack to another tenant that he Lee later stated approximately fifteen ing complex in which part burning and taken in the cross had mix The racial black families lived. burning symbol he cross was a knew ap- Apartments’ Tamarack residents he burned the Klan. He also said had quarters three white and one proximately “[m]aybe to take a stand and that the cross quarter black. rid of get that would some of the bad there, they that were would take blacks morning August joined Lee On the message seriously and leave.” Tr. at 288. tenаnts, includ- several other Dockter and Jahr, Cathy ing and his wife Werner Jahr apartments. picnic outside the at a table DISCUSSION ra- group

The drank alcohol and discussed The First Amendment occurring problems had cial which been 241 of the Title section complex. among children Several provides part it is a States Code group dis- assaults had occurred. The also “conspire injure, oppress, Joneses, crime to the likelihood that cussed threaten, any or intimidate inhabitant of family aрartment lived in an black who State, Dockter, Territory, or District in the free would be evicted. It was above enjoyment any right privi Pearl Jones’ son had assault- exercise or rumored that lege by secured to him the ed a white child. Constitution of the United or because of his laws drinking and discussion continued ” having so exercised the same.... Lee throughout day. approximately At statute, applied this o’clock, mentioned that three Werner Jahr him, violates the first amendment because he had read an article about the Ku Klux expressive punishes it act of cross if Klan. He told Lee that the Klan were burning. contends the Lee also there, burning. there would be a cross vague. overbroad and they suggested burn a cross and Lee Jahr good agreed that it was a idea. Lee then proceed predicate that cross constructed a wooden cross. Later that burning possesses is conduct which suffi- afternoon, Lee told Dockter’s sister that he impli- cient elements of communication to intended to burn the cross because there However, it cate the first amendment. upstairs problems people were with the necessarily not follow that the burn- going something he was to do about it. ing protected of this cross was first amend- O’Brien, activity. ment United States v. o’clock, approximately At ten 367, 376, changed into dark clothes. There was tes- (1968). inquiry The relevant timony that Lee also donned a white ‍‌​‌​‌‌​​‌‌‌​‌​​‌‌​​‌‌‌​‌‌​​‌‌​​​‌‌‌‌​​​​‌​‌‌​‌​‌‍mask. governmental regu- whether the interest in Lee then burned the cross on a smаll hill suppression lation is related to the of free from about 386 feet build- Johnson, expression. Texas v. ings. Although the cross had been soaked 105 L.Ed.2d spirits, only briefly. with mineral burned If the interest is related to the Lee seemed dis- Witnesses testified that suppression expression, apply we must appointed that cross had not burned heightened standard of review. Id. If the longer. suppression interest is unrelated to the cross was seen Pearl expression, the more deferential O’Brien family Jones and her and friеnds from the apply. standard will Id. balcony. Joneses’ Pearl Jones testified governmental interest We hold that that she was afraid when she saw it be- regulation supporting cause it made her think the Ku Klux is unrelated to “peoples suppression expression. that hate blacks.” Tr. at of free Sec- Klan— Congress’ under the thir- power exercise of conspiracies prohibit 241 does not tion amendment). teenth messages; or racist offensive communicate conspiracies simply prohibit it dоes hold that the enactment We further a content 241 is a cross. Section burn important 241 furthers an and sub- section conspiracies prohibits protecting neutral statute interest governmental stantial in the exer- specifically, others federally guaranteed or intimidate to threaten — federally guaran- free from racial discrimina- enjoyment of their to be cise housing. to the facts before tion in applied rights. As teed prohibit Lee us, 241 does section the incidental re Finally, we hold that convey an a cross to to burn conspiring freedom is no on first amendment striction message of racial message or a offensive to fur greater than that which essential Rather, prohibits statute the hatred. governmental interest. Section ther the threaten a cross to conspiring to burn tar narrowly tailored law which 241 is a in the targeted individuals the exact source of gets intimidate and eliminates a remedy by requiring federally guaranteed it seeks to “evil” of their exercise requirement. Bоos v. dwelling. strict scienter See occupy to rent and Cf. 1157, 312, 326, 108 S.Ct. Barry, 485 U.S. (Committee Solidarity with in CISPES (1988) (18 1166, L.Ed.2d 333 U.S.C. 99 Salvador) Bu- v. Federal People El of only prohibit picketing; “does not §112 468, F.2d 474 770 Investigation, reau of ‘intimidate, undertaken to prohibits activity Cir.1985).3 (5th threaten, ”). stat coerce, or harass.’ governmental Having concluded that proved beyond if it is only ute is violated of free exercise protecting in interest pos the defendant reasonable doubt that rights is unrelated federally guaranteed threaten or specific intent to sessed the expression, we next suppression of free enjoy in exercise or intimidate another 1) within is whether the determine federally guaranteed right. See ment of a govern- power the constitutional 745, Guest, 753- v. 383 U.S. United States ment; 2) important or substan- furthers an 1170, 1175-76, 54, 16 L.Ed.2d 239 86 S.Ct. 3) interest; has no governmental tial Guest, (1966). Supreme Court held In first amendment restriction on greater offender act with a requires the 241 § to further the is freedom than essential a federal to interfere with specific intent O’Brien, absent, at 391 U.S. underlying interest. intent is specific If right. Id. 377, first amend 88 S.Ct. at 1679. not restrict the statute does freedom. ment protect 241 is intended Section is overbroad. the statute Lee contends privileges all exercise of free 241, prohibits which disagree. Section all laws by secured Constitution abridge the which intimidation threats or v. States. United States of the United federally enjoyment of free exercise 1152, 787, 16 Price, 86 383 U.S. reach a sub- rights, not guaranteed (1966). the extent L.Ed.2d 267 To constitutionally protect- stantial amount is an exercisе of section 241 enactment Es- Village ed See conduct. of Hoffman thir to enforce the Congress power Inc., Estates, Flipside, tates v. Hoffman through legisla by and teenth amendment 1186, 1191, 494, 71 489, 102 S.Ct. 455 U.S. tion, U.S. it is valid. See we hold (1982). L.Ed.2d 362 Const, 2; XIII, v. Williams amend. § cf physical 819, (8th by threats Intimidation Co., 825 Cir. 499 F.2d Matthews by the first protected not an violence is 1974) (Fair Housing of 1968 is also Act Barry, v. 485 CISPES, dating See Boos nature. also reviewed 18 Circuit In Fifth 326, 312, 112(b)(1) (2), L.Ed.2d 333 it a crime 99 makes 108 S.Ct. which — coerce, “intimidate, narrowly (1988) ("[Section] or harass” a threaten directed to forеign 112 not performance his duties. any activity, official speech at at the content of 112(b)(1) (2) does The court concluded that prohibited ef speech, including — that has the message, any particular but rather restrict not fects.”). threatening or proscribes intimi- conduct 956 captivity that it effect See, e.g., in such a state of v. United Watts amendment. ability to avoid away the individual’s takes speech. exposure to the (1969) (true threats 22 664 L.Ed.2d speech); constitutionally protected course, jury, of was aware Orozco-Santillan, 903 of Lee’s conduct. The circumstances Cir.1990) (“A ‘true’ F.2d readily found that Lee’s conduct could have

threat, person would a reasonable where by threat to intimidation was tantamount he will listener will believe foresee that the mere advo- It was not violence. upon his physical violence subjected to be intimidation an overt act of cacy, but rather by the first amend person, unprotected context, which, of its historical Mitchell, ment.”); United States prom- precursor to or a often considered (violent (8th Cir.1972) threats Upon people.5 against black ise of violence protection), are devoid of constitutional evidence, jury could have the record denied, cert. espe- an the cross found that However, vio the sub- cially act which invaded intrusive line not mark the constitutional lence does of its victims privacy stantial interests may legislate. beyond Congress pro- To essentially intolerable manner. gеnerally tolerate Although persons must of this nation from tect the inhabitants disturbing speech, the highly rights offensive on civil does not such an attack speech may restrict such government spirit of the first amendment. violate the privacy the of the where it intrudes on challenges the statute as uncon- Lee also captivity degree of home or where the the stitutionally vague. He contends stat- unwilling ‍‌​‌​‌‌​​‌‌‌​‌​​‌‌​​‌‌‌​‌‌​​‌‌​​​‌‌‌‌​​​​‌​‌‌​‌​‌‍an listen impractical makes it for give notice vague ute is because it fails to the expоsure to avoid to er or viewer burning cross is a crime. This con- that a City Erznoznik v. Jackson speech. of without merit. The statute tention is 2268, ville, 422 U.S. 205, 209-11, 95 S.Ct. cross; burning the prohibit the of (1975). 2272-73, 45 L.Ed.2d 125 the prohibits conspiracies where intent demonstrated. requisite specific is in residential We find that the interest only “[Wjhere punishment imposed the is legisla privacy clearly implicated purpose knowingly done with the for an act protect right to be applied tion as prohibits, doing of that which the statute housing. free raciаl discrimination in from be said to suffer from the accused cannot Schultz, 484-85, Frisby v. 487 U.S. Cf. knowledge that the warning or act lack of (1988) 2495, 2502, 101 L.Ed.2d 420 108 S.Ct. of law.” he does is a violation (“There right speech simply is no to force v. Screws United listener.”).4 unwilling into the home of an (1945); 1031, 1036, L.Ed. S.Ct. 89 1495 65 Furthermore, targets an individual one who Price, n. 86 see also 383 U.S. at 806 intimidate with the intent to so threaten or at 1163 n. 20. to interfere with his or that individual as vague right occupy a Lee also contends the statute her free exercise of the “pure- “intimidate” has a the term dwelling may place targeted individual " Miller, seventy-one year old black protecting Lonetta the well-be ‘The State’s interest in on cross-examination as fol- ing, woman testified tranquility, privacy the home is lows: certainly highest in a free and of the order 1 society.’ prior have of civilized Our decisions gentlemen you Q: the ladies and Could tell home, unique means, ten remarked on the nature of the jury what a cross of the tired, weary, anywhere 'the last citadel of sick,' is in the south or else? whether it intimidаtion; recognized ‘[preserving and have that the ku A: Well it is a form home, threats; sanctity promises to which of the the one retreat klux klan uses it for violence, repair escape thing. men and women can from the and that sort of daily pursuits, surely an a lot of the cross tribulations of their what I understand From Schultz, during important Frisby burnings the civil value.”’ in the south 2495, 2502, hangings preceded that sort of L.Ed.2d 420 movement course, black, (citations omitted) being (1988) that is what it (upholding thing. ordinance Of dwelling banning picketing targeted single at а calls to mind. area). Tr. at 354. in a residential the Evidence Sufficiency reject meaning. We subjective” ly alleged evaluating the In contention. the evidence Lee contends “intimidate,” dowe term vagueness “nothing did other than con shows he In- in isolation. meaning its not consider for a minute or less and burn a cross struct meaning in con- stead, its we consider away 386 feet in a field some American Communi- of the statute. whites apartment complex text which both Douds, 339 U.S. disagree. Ass’n and blacks resided.” cations (1950). provide 94 L.Ed. recited above sufficient facts as and, a rational trier of fact the statute from which context of evidence Viewed ele that the essential re- could have concluded complex scienter thus, part of the charged under 18 ments of the crime term is not meaning of the quirement, proved beyond a reasonable 241 were engage in con- is to intimidate vague. To doubt. person’s awith designed to interfere duct guaranteed federally free exercise Jury Instruction Propriety of statute, the In the context rights. Applicability regarding the ordinary requires neither “intimidate” term Housing Act the Fair meaning nor does its guess at people the trial also discriminatory en- arbitrary or encourage instructing erred court Lawson, 461 Kolender v. See forcement. implicated. Act of 1968 was Housing Fair 1855, 1858, 75 352, 357, 103 S.Ct. it was an court instructed that essen charged of the crime tial element allegedly interfered with right Jury Instruction Propriety of protected by the laws or Constitu- Intent regarding In of thе United States. connection tion element, Housing Fair Act with this instructed that court The any person protects of 1968 “intimidate” “threaten” or The words dwelling occupy a without to hold and sense, any in used technical are or interference because intimidation intended variety of conduct may cover a color. race or harm, inhibit the frighten, punish or to essentially that the instruc- To “threat- persons. other action of free Housing the Fair tion is erroneous require a does not en” оr “intimidate” right to only the limited hold Act confers intimi- force or the threat of dwelling free from discrimi- occupy physical fear. dation he agents; their nation landlords by in- erred the trial court Lee contends right to not confer a the Act does suggests “intim- jury that structing term by persons free from discrimination be fear of require idate” does misreads the Act himself. Lee such as case and light of the facts of this In force. 3602(f), 42 U.S.C. indictment. See §§ first in of our discussion view objection is merit. His without “nega- challenge, this was amendment unnecessary but that was instruction tive” Argument Closing Prosecutor’s harmless. re prosecutor’s Lee contends in- trial court’s contends the Lee also was “uncontradicted” marks that evidence argues he was erroneous because struction the defendant’s comment on improper were in- that the term “intimidate” suggests “un- testify. References to to decision not merely would inhibit “which if impermissible conduct cludes evidence contradicted” respect.” in to the action of others some attention the free to draw they are intended jury testify, if the Brief at 29. We conclude to or Appellant’s defendant’s failure necessarily understand naturally the court’s or argument mischaracterizes would instruction, defendant’s fail on the when con- as comment The them instruction. Kragness, testify. in instructions ure to in context of the strued Cir.1987). entirety, not erroneous. was their nothing in the record that tion that the amended was intended There is apply to to facts such as those before us. prosecution intended to suggest the would arson, Lee did not commit nor did he dam- attention to the fact that jury’s direct the age persons property by or the use of fire.8 testify. to Nor do we defendant chose not guess Because we are left to as to whether “naturally nec would find that 844(h)(1) Congress apply intended to essarily” prosecutor’s § ref understand these, must reverse. facts such we See fail erences as comment on the defendant’s v. United testify. We conclude that in view of ure to Bifulco (1980) 65 L.Ed.2d 205 instructiоn, the court’s “curative” which (rule lenity construing in criminal stat- given patterned Kragn was after that in utes). ess,6 prosecutor’s ‍‌​‌​‌‌​​‌‌‌​‌​​‌‌​​‌‌‌​‌‌​​‌‌​​​‌‌‌‌​​​​‌​‌‌​‌​‌‍remarks did not prejudice the substantial of the de judgment of the district court fendant. I affirmed on Count and reversed on Count III. 844(h)(1)

Applicability 18 U.S.C. § ARNOLD, Judge, dissenting. Circuit Lee contends his conviction on count I, III be reversed because he did not must I would reverse the conviction on count felony use to commit a within the which is under 18 fire laid This 844(h)(1). disposition meaning unnecessary of 18 U.S.C. would make it III, involving discuss cоunt the use of fire agree and reverse the conviction on count felony conduct which under III. federal law. enactment Prior to the Anti-Arson I, given, As to count take it as a 844(h)(1)provided Act of section opinion does not Court’s seem to dis- explosive it was a crime an “use[] agree, burning, that the act of cross as it any felony may prose- commit which be ” case, expressive occurred con- in court of the cuted United States.... duct. It convey was intended to a mes- 844(h)(1), present fоrm, Section its now sage, an do peo- idea: “We not like black provides that it is a crime to ] “use[ fire out,” ple, and we want them to move explosive any felony to commit something of the sort. This kind of com- may States_” prosecuted in a be court of the United munication, hateful, no matter how added). (emphasis legisla- “speech” meaning within the of the First 844(h)(1) history indicates that tive was protection Amendment. It is entitled to to include use in amended of “fire” order to governmental just sanctiоn as much prosecution the facilitate of arson. H.R. speech might approve. as of which we 678, 1-2, Rep. Cong., No. 97th 2d Sess. reprinted 1982 Cong. in U.S.Code & Ad- 241, position The Court takes the that 2631-32. The amendment was conduct, min.News applied expressive as to is content proving to remove the of intended obstacle purposes analysis neutral. For of requirement prior damage present case, the the accept I will this character- by by caused arson was caused means of prohibit ization. The statute does threats kinds, “explosive.”7 regardless Id. There is no indica- and intimidation of all of 1,985 22, agreed upon by Cong.Rec. (daily Sept. 6.The curative instruction was 7. 128 SI ed. 1982) (statement parties. provided: Glenn) ("This legis- the It of Senator lation would enhance the During morning effectiveness of Feder- arguments the Ms. investigations prosecutions by al argued you of arson to Sines that certain evidence was eliminating stances, necessity proving the of that sub- uncontradicted or presented was no evidence there gasoline, ‘explosive as were such in an to controvert certain other evi- you regard, to state’ at the time an arson was committed.... dence. want remind in that law, satisfying that it is the law that a in a crimi- Under current this element of defendant calling any proof quite requiring nal case has no burden of witness- is often an onerous task producing effort....”), any investigative es or hand, evidence. the other time and On considerable quoted Fiore, 127, you as I have told before and will tell in United States v. 821 F.2d you again government (2nd Cir.1987). the has the burden of 131 proving beyond a reasonable doubt each of called, Although appears the elements of the various offenses. fire trucks were it damage. Tr. at 508. the fire did threaten

959 abusive,” v. Watts vituperative ten speaker [and] of the viewpoint particular 708, 705, 89 S.Ct. 394 U.S. face, not di- 241, is on its Section actor. 1402, 1399, 22 L.Ed.2d 664 burning as such cross to rected conduct, rath- of 444, form particular Ohio, 89 other Brandenburg v. to threaten kinds (1969), of all conspiracies is an 1827, er to 430 23 L.Ed.2d a feder- of There, in the exercise of others the conviction example. intimidate excellent Moreover, residents the black Ku Klux Klan under right. of the al member had a reversed. federal was housing question syndicalism in criminal in a Ku participated is evidence there, had and there The defendant live finding that rally involving a number support a Klux Klan record sufficient carried of this of whom view some figures, in full hooded a cross burning of burned, threats to, A cross weapons. wаs intended complex people were discussed. “bury” the black black fact, least some cause at in did tele on message was disseminated' something is The Still, afraid. to be residents case, involving though A similar vision. appli- justify my opinion, in lacking, spectrum, is the political end of the other a First statute, against as cation Co., 458 Hardware v. Claiborne NAACP this record. challenge, on Amendment 1215 73 L.Ed.2d test set requirements ofOne mer boycott of (1982), involved O’Brien, 391 U.S. out United threatening state by a accompanied chants ‍‌​‌​‌‌​​‌‌‌​‌​​‌‌​​‌‌‌​‌‌​​‌‌​​​‌‌‌‌​​​​‌​‌‌​‌​‌‍L.Ed.2d 20 367, 377, 88 S.Ct. advocating physical vio specifically ment narrowly statute be (1968), is Smith, also Collin lence. See inter- governmental to advance tailored denied, Cir.), cert. restric- incidental “the question, est (Nazi (1978) 58 L.Ed.2d freedoms First Amendment alleged tion city heavily Jewish' through a march Party to the is essential than greater no [be] Amendment). First protected held statute, This of that interest.” furtherance speech that even to be this: law seems tailored, Ias un- narrowly though, First by the protected violenсe advocates requirement. derstand actual Amendment, likelihood unless the constitutionally de gov- to define the some First, necessary violence crosses involved, so in to do line. rived interest ernmental transgress itself does not way that noted, Court the District Here, I have as in- define I would First Amendment. defendant’s jury, over explicitly told free of right to be as follows: terest nor threat force that neither objection, force. force, or threats they could required, and force was cоurse, nothing about says 241, of Section so actions they found defendant’s if convict intimidation, and, speaks only force. It of oth- free action much “inhibit[ed] by given instructions jury great deal of as defined a suggest I that persons.” er here, concept covers offensive District Court or sufficiently forceful speech is harm, against intended to variety persons of conduct “a free action to inhibit the action that it directed, the free or inhibit in the sense punish, frighten, it is whom acting ‘threaten’ ‘intim- before To hesitate persons. someone of other would make very Indeed, is the require way. a threat of in a certain idate’ does others’ fear.” to influence speech: purpose intimidation or the force case, point is think, definition, present much too In the conduct. I Such jury ac- that the great by the fact broad, neatly criminalize made it would II, interference pure speech, count conduct, quitted defendant some of deal of of 42 in violation housing rights forcefully state mоre with no than contains 3631(a), an offense revolting appalling. find others view that the threat force elements one of its as as construed the statute uphold To though we likely, highly It First force. seems wholly with inconsistent way certain, jury did be cannot course long cherished. have values we Amendment ei- indicated record present not think “is of- speech which include Those values ther actual force or imminent the threat of instead, thought, force. It intimi- WILLIAMS, Appellant, Ernest C. place. dation of some lesser form had taken If, cross, instead of an act ADAMS; George Armontrout; Bill Unit especially odious because of its historical Baysinger, Mgr.; Investigator Coonce; antecedents, the defendant had distributed Dearixon; Doe; Arthur W. John Dave Apartments, in the Tamarack

leaflets stat- Dormire; Lawson; Moore; L. Co. Dick ing that the Ku Klux Klan was in the Strause, Appellees. Paul neighborhood, people, disliked black out, wanted them to move the black resi- No. 90-2201WM. apartments dents of the could wеll have Appeals, United States Court of been threatened or intimidated in the sense Eighth Circuit. by allowed the District Court’s instructions Yet, jury this case. the same May Submitted “captive theory by audience” advanced Decided June here, apply Court ante at would such a case. If the cross had been burned

on complex’s property, own

the Court would be closer to Frisby v.

Schultz, (1988) (upholding ordinance

banning picketing targeted single at a

dwelling area), in a residential but nearly away

cross was 400 feet

someone else’s land. Whatever the limits “captive be, audience” principle may

I would not extend it this far. reasons,

For respectfully these dissent.

The result would not be dismissal of the

indictment, only trial, a new at which would be instructed that it could

not convict on count I unless it found that

the threats and intimidation involved an force,

imminent use of or at least caused Apartments

the residents of Tamarack

fear force was imminent.

Order

Aug. Appellant’s petition rehearing for with

suggestion for rehearing en banc has been

considered granted court and is I ‍‌​‌​‌‌​​‌‌‌​‌​​‌‌​​‌‌‌​‌‌​​‌‌​​​‌‌‌‌​​​​‌​‌‌​‌​‌‍only. Count The opinion judgment

of this court filed June hereby pertains

vacated as it to Count I. The

parties may supplemental file briefs not to pages

exceed fifteen within two weeks

from the date of this order. The clerk will

notify parties place of the time and argument

oral at a later date.

Case Details

Case Name: United States v. Bruce Roy Lee

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 14, 1991

Citation: 935 F.2d 952

Docket Number: 90-5264

Court Abbreviation: 8th Cir.