United States v. Kenneth T. Hayward, and William B. Krause, Jr.

MANION, Before FLAUM and Circuit Judges, MILLER, JR., and Judge.* District MANION, Judge. Circuit The United (“govern- States of America ment”) charged. Hayward Kenneth T. and (“defendants”) William B. Krause with vari- ous crimes associated burning with- the two crosses on property of a family white who had people entertained black in their home. The defendants were tried and con- victed. appeal, they On challenge the dis- application trict court’s of 18 U.S.C. (use 844(h)(1) of fire an explosive or felony) 3631(b) commit a and (interference housing with rights by force or threat, force) They to this case. chal- also lenge the court’s limitation of their cross- examination of certain witnesses and the. court’s denial of their motion to dismiss the indictment prosecutorial on the basis of mis- ;in conduct. affirm We the district court all respects. Background

I. The events of this case occurred over the Day Keeneyville, 1989 Labor Illi- weekend nois, semirural, apparently close-knit and community Chicago. all-white west of Bob Jones, Mary couple, and a white rented a Keeneyville house shared with Pam, son-in-law, daughter, Jad Rayan, Rayans both of whom are white. The occasionally had black friends who visited the house. Some those friends visited Rayans Day over the Dur- Labor weekend. visit, holiday the defendants burned (ar- Shapiro, A. Atty. James Asst. U.S. Elden, crosses in fi-ont of the gued), Barry house to Atty., R. Asst. U.S. Joneses’ Chi- IL, cago, for underscore their dislike of blacks —or as * Jr., Miller, Judge designation. Honorable Robert L. District Indiana, sitting by the Northern District of is' frightened. and were saw the cross children them, and “coons”— “niggers” referred department telephoned the fire neighbor staying a white The with Keeneyville and being in burning to set cross threatened family. nearby police were also tree. The fire to a weekend. burned were Two crosses called. (although Hay Hayward Krause, without had investigation into who it) police cross the first burned

ward knew about progress. little the crosses made Miller and burned of Thomas the assistance crime, afternoon, who knew about Sunday Most of those Early Steven Randall.1 it, either related in were pieces of were involved out of the cross two made Krause inculpate the refused to lumber, good covered friends and Miller two-by-four inch matter. A for that or themselves made out mixture he had a flammable it with police more than for the jelly. The cross break occurred petroleum gasoline and Bardeleben, Krause’s Lynn year when high was four later feet and and one-half stood six and argument with Krause girlfriend, had an that eve About 8:00 feet wide. and one-half (all knew subsequently police the what she Miller, told Randall Krause, and ning, .During argu burnings. the cross drinking) the cross about the carried had been whom Krause, drunk, ment, Bardele who was hit to the cinder block Joneses’ and a cement handgun to magnum placed and his .357 at the ben They placed the cinder block house. Bardeleben, the of, to driveway inserted her head. Unbeknownst and edgе the Joneses’ trig pulled the attempted gun unloaded. Krause was Krause cross into the block. the . He then her cross, ger times. cautioned not because the six could light to the but if she told the Federal be dead ran back she would evaporated.- He then gasoline had (“FBI”) Investigation what she house, staying, Bureau of he, where Randall was burnings. cross Bardeleben knew The men about gasoline, and returned. got some away apartment, but Krause driveway from the up drove a few feet moved the cross nearby a she arrived at followed her. When gasoline. set it with the Krause and doused station, egress her Krause blocked neigh police A the men fled. cross on fire and honking began car. Bardeleben burning and kicked it from her cross bor saw off. horn and Krause her car drove down. Thereafter, house, investigation into the cross Randall Miller Afterwards at the gov brought positive for the burnings results power saw and ham of a heard sounds against filed An indictment Hay ernment. coming from the direction mering defendants, charging con drunk, each with them Hayward, who was ward’s house. § rights, 18 U.S.C. spiracy civil Randall his arrived at the house later felony, of fire to commit federal of the was a use In the truck pickup truck. bed 844(h)(1), housing § with first, interference cross, approximately U.S.C. larger than the force, 42 wide, rights by or threat of U.S.C. with force high, and built feet five feet seven 2,§ 3631(b); abetting, aiding § and 18 U.S.C. Hayward, pieces lumber. two-by-six inch a violent use of a firearm commit Miller, from and removed cross and Krause 924(c)(1). addition, crime, § gasoline 18 U.S.C. nearby to a the truck drove and , threatening a wit charged with Krause was pour fuel to on the purchase diesel station to (Bardeleben). in of 18 U.S.C. violation evening, ness midnight that same cross. Around trial, 1512(b)(1). nine-day jury § After the diesel-fuel soaked the three men loaded Hayward charged. convicted as Krause was drove to the Joneses’ into the and cross truck counts, except for the on all was convicted house, they placed the into the cross where moved the charge. The firearm cross. that held first same cinder block defendant^ acquittal judgment cross, court for three district lighted and the Hayward or, notwithstanding in the alter the verdict sped away.2 got into the truck and men They native, also moved the for a new trial. driveway, a in the cross burned While the on dismiss indictment Rayan her court Rayan. and neighbor Pam woke they away Hay- drove that as cooperated testified with the Miller later Miller and Randall handgun caliber five or six charged a small exchange being with ward fired government misdemeanors, for Hayward felonies, jury acquitted the house. The times than rather burnings. act. this roles in the cross prosecutorial ground of misconduct. The defendants acknowledge plain that the word apply here, court denied their motions. The court sen- of the statute could Hayward insist respectively that we should language tenced Krause construe the prison. give Congress. months and 78 mоnths in This effect to the intent of To accomplish bypass timely appeal plain meaning followed. statute, of the urge the defendants us to look II. Analysis solely legislative at the which history, only claim focuses arson-type on offenses.4 points appeal. The defendants raise on four decline, however, We process to invert the First, misapplied whether the district court statutory analysis, we instead look to the burning to this cross ease 18 U.S.C. wording of the statute itself to discern Con 844(h)(1), punishes which the use of fire or gress’s purpose in promulgating section' explosive felony. an to commit federal 844(h)(1). Second, applica- whether the district court’s 3631(b) tion of 42 to this ease violat- A starting point court’s to determine right ed the First Amendment defendants’ Congress the intent of language is the speech. burn the crosses as a matter of free itself, Bush, statute Corp. Bethlehem Steel Third, whether the district court abused its Cir.1990), limiting discretion in the defendants’ cross- discerning the best method of congressional Fourth, examination of certain witnesses. intent is to Congress the words examine used denying whether the district court erred in Bowen, in the statute. See Meredith v. 833 post-trial the defendants’ motion to dismiss 650, (7th Cir.1987). F.2d 654 “Where a word prosecutorial the indictment on the basis of phrase or a has not been in otherwise defined misconduct. 844(h)(1) a [as statute is the casé in section “fire”], with give the word a court should it 8H(h)(1) § A. 18 U.S.C. plain ordinary meaning.” Bailey its v. Lawrence, (7th point appeаl, City 1447, their first on 972 F.2d 1451 In of Cir.1992). defendants contend the district court erred in 844(h)(1) § applying 18 to U.S.C. this cross past express A court looks “the lan 844(h)(1) burning case. Section states: guage only statutory of a statute where that explosive “Whoever ... uses an or to fire ambiguous or where a literal language any felony may prosecuted commit which be interpretation would lead to an result absurd shall, in a court of the ... United States in purpose or thwart statutory of the overall punishment provided addition to the for such Ave., Douglas scheme.” United States v. 916 felony, imprisonment be sentenced -to for five (7th 490,.492 Cir.1990), denied, 903 F.2d cert. years consecutively run punish- [to 1126, 1090, 498 111 112 U.S. S.Ct. L.Ed.2d predicate felony].” ment received for the 18 (1991). contrast, 1194 language when the 844(h)(1) (emphasis § added). U.S.C. In this unambiguous, of a statute is clear and no case, predicate felony was 18 U.S.C. need exists for court to examine the 241, § conspiracy to violate another’s civil legislative history, give and the court must rights.3 plain meaning effect to the of the statute. The 1326; defendants maintain that E.g., Corp., section Bethlehem Steel 918 F.2d at 844(h)(1) NuPulse, Co., apply 545, does not to this case because Inc. v. Schlueter 853 F.2d (7th Congress Cir.1988); Meredith, only intended the for statute 548 833 F.2d prosecution Although Along looking of arson cases. language with at the of results, pertinent part: subject 3. Section 241 states in and if death shall be to imprisonment any years term of or for life. persons conspire injure, If two or more to 18 U.S.C. 241. threaten, oppress, аny or intimidate inhabitant State, Territory, or District in the free legislative history rely 4. The the defendants on enjoyment any right privilege exercise or or 18814-17, appears Cong.Rec. 24608-10 secured to him the Constitution or laws (1982) 678, States, Report Cong., and House No. 97th having the United or because of his so (1982), reprinted 2d Sess. 1-5 exercised same.... U.S.C.C.A.N.2631-35. also United States v. See Fiore, $10,000 127, (2d Cir.1987) They (repro- shall be fined not than 131-32 more both; imprisoned years, ducing legislative history). not more than ten the relevant applies part crimes and question, section restricted arson the statute analysis examining the lan burnings includes interfere designed court’s cross design of as a whole. guage and the statute rights); civil accord United another’s States Cartier, Inc., Corp. v. E.g., U.S. K Gresser, Cir.), Mart v. — 100 L.Ed.2d 108 S.Ct. U.S. -, 239, 116 cert. (1988). (1991). L.Ed.2d 195 however, insist, The that 8kk(h){l). Section Examination of e 844(h)(1) application of to this th section n 844(h)(1) leads us reading of section Our an ease causes result.5 For that absurd Congress clear- the intent of conclude application apply, characterization language the statute. ly in the expressed would have outlandish here to-be so 844(h)(1) simple, states in clear terms Section Congress could intended it. not have This “[wjhoever explosive ... uses or an fire statute does not that difficult standard. reach any felony may prose- be which to commit way, straightforward Put another read “[a] of the United States in a court cuted 844(h)(1) produce [section does not ] imprisonment for ... sentenced to shall unjust glaringly result so absurd or as to 844(h)(1) (em years....” five Congress’s raise reasonable doubt about added). phasis language The of the statute —States, Chapman intent.” v. United prosecution limit itself to the does not -, -, 1926-27, cases, urge us to as the defendants arson (citations (1991) and internal Congress wanted to so limit conclude. Had omitted). marks quotation language statute, easily it could have inserted 844(h)(1) Congress used in section shows that into the statute. See Smith word “arson” States, U.S. -, -, Congress punish intended to those who use United For L.Ed.2d 138 any felony. exactly to commit That is fire example, Congress could have drafted the Hence, case. what the defendants did uses fire or an statute to application read: Whoever of the the .statute here does not may any which explosive to commit arson an absurd cause result.6 prosecuted in a court of the United States point underscore that to To their avoid an to imprisonment for five shall be sentenced 844(h)(1) apply absurd result section must years. In- Congress chose not to do so. only cases, provide to arson the defendants stead, Congress punish chose those who to example the person us with of a who commits any felony. That dictate use to commit fire shipment. They the theft of an interstate facts of The defen- applies to the this case. posit lighter if the that thief uses a “Bic” aas fire to burn two crosses in order dants used key light help source to him insert the into felony violating tо the commit the of civil steal, the lock of the truck he to wants rights inhabitants of the house. 18 844(h)(1) applied, section could be thus caus- § lan- Accordingly, 241. we find the ing signifi- an absurd result. But there is a 844(h)(1) clear and guage of section to be using simply cant difference fire between to unambiguous applicable and the statute felony using a commit and fire to the this case. States v. facts of United facilitate Cf. felony. in the or assist of a (11th commission Fire 1514, Worthy, 915 F.2d 1516-17 Cir. fighter from “Bic” in 1990) facilitates or assists Sentencing (holding pre-1990 that 2K1.4(b)(4)—use the commission of of fire or the crime interstate section Guidelines felony—is explosives using a not That to commit federal theft. is the same as fire not Cir.1989); (6th States, dealing Munger v. in We- that cases with a cross 114 United note 827 house, person's burning 100, (N.D.N.Y.1992). front of a such as in F.Supp. 101 here, government's prac- occurred common 844(h)(1) charge § tice is to defendant under Indeed, although argue ap- that one could 42 as well as under 18 U.S.C. 241 and U.S.C. § mandatory plication five-year penalty 3631, E.g., in this as it did case. United States 844(h)(1) stern, to the defendants’ crime is denied, 96, Cir.), Gresser, (6th v. F.2d cert. 935 98 remedy dissatisfaction with the "[t]he -, 239, U.S. 112 S.Ct. 116 L.Ed.2d - Congress [this results in lies case] with and not 1207, (1991); Long, States 935 F.2d 195 United v. Congress may with this Court. amend stat- Skillman, (11th Cir.1991); 1209 v. United States dismissed, Cir.1990), ute; may we not.” 1370, (9th v. Oceanic Contrac- - 922 F.2d Griffin cert. tors, Inc., 564, 576, 3245, -, 353, 458 U.S. 102 S.Ct. 116 L.Ed.2d S.Ct. U.S. 275 (1991); Salyer, 73 L.Ed.2d United States v. cases, felony, conspiracy maintain, in this case as the defendants commit a then no 844(i) rights through threat or intimidation. need would exist for section and vice lighter keyhole Surely Congress illuminate a is Using the versa. did not intend to 844(h)(1) 844(i). illuminating keyhole duplicate from no different section with section 844(h)(1) Instead, flashlight. Illuminating anyone a a wooden section applies cross, however, flashlight with a or a flood- who any felony uses to commit and is fire light completely illuminating just different from not limited to arson Freytag cases. See —C.I.R., —, -, by setting it on an v. the cross fire. fire is U.S. (1991) integral part of the threat intimidation. (noting that “ reasonably argue merely deep One cannot that courts should ‘a have reluctance to cross, erecting interpret statutory provision a wooden illuminated a whether so as to ren- not, by driveway floodlight superfluous provisions someone’s der other on the same ”); setting has the same effect as the cross on Roy, enactment’ see also United States v. (7th Cir.1987) fire. The intimidation not (stating or threat does 830 F.2d that enactment, in construing legislative stem from the fact that a wooden “we cross — presume placed legislature itself —is outside one’s home. The intended necessary component intimidation stems from the flames emanat- each section was a crosses, statutory surplusage”), scheme and By burning from the cross. two not 1068, 108 cert. the defendants used to commit the felo- fire (1988). Compare L.Ed.2d 997 ny conspiracy rights United States to violate the civil Fiore, (2d Cir.1987) 821 F.2d those the Jones household. The fire did 844(h)(1) 844(i) (holding that sections and are simply not or assist them the facilitate multiplicitous) with United States v. Cha commission of crime.7 1094, 1096 Cir.1977) (hоlding ney, 559 F.2d Moreover, language an examination of the pre-1982 hat amended version of t design supports section 844 our con 844(h)(1) 844(i) section and section cannot be 844(h)(1) clusion that section is not restricted charged in the same indictment when identi- solely Corp., to arson See K Mart cases. both); prove cal evidence is used see also 291, 108 1817. Section 844 is Karlic, United States v. penalties punish statute fashioned to (9th Cir.1993) (discussing Chaney). Fiore and illegal explosives. drafting use of fire or such, As we language conclude statute, 844(i); Congress placed section design of section 844 as a whole consistent statute, immediately the federal arson after charge with the and conviction under the 844(h). 844(i) provides section Section facts of this case. part: Lenity. 2. Rule maliciously damages destroys, Whoever or attempts damage destroy, by or to or suggest The defendants further any explosive, building, means of fire or an 844(h)(1) ambiguous is at least section vehicle, personal property other real or and, thus, apply lenity we should the rule of foreign used in interstate or commerce or past language and look of the statute and any in- activity affecting interstate or for- legislative history. disagree. to its We The eign imprisoned commerce shall not lenity applicable not unless there rule “is years more than ten or fined not more grievous ambiguity uncertainty in is a $10,000, than or both.... language statute] and structure of such [a 844(i). § Congress еvery 18 U.S.C. If a court has seize[d] had intend- even after 844(h)(1) apply only ed section it thing to to arson from which aid can be derived is still doubt, 844(h)(1). argument. appropriate language § 7. No a reasonable could be into 18Cf. 844(h)(2) Congress 844(h)(1) (prohibiting carrying § § made that had intended to of an U.S.C. offer, apply example explosive during the defendants’ federal Con- commission gress language felony). pass judgment have would inserted into the We. no on whether the stat- fire, prohibit only government prosecute person ute to the use of to could a under commit 844(h)(1) felony, very § but to the commission of a based on the limited facts the facilitate 881(a)(7) (real felony. shipment property 21 U.S.C. in their defendants set forth interstate Cf. forfeiture). vein, Congress, government hypothetical. In the same if it so theft has discre- chose, proscribed charges people alleged could have to have the use of fire dur- tion in how it felony by inserting the commission of a committed federal crimes.- 1248 unclear, to ambiguous, or would have led Chapman, was ambiguous statute.” left an with — (citations —, result, began 111 S.Ct. the Lee court at an absurd U.S. omitted). The quotation 844(h)(1). marks internal legislative history of section 844(h)(1) is clear and in section language legislative history, place Its reliance on the Therefore, do not need to unambiguous. we statute, plain meaning of the and clear of the history legislative of the statute. examine “guess” it to whether Con- caused to have also, 492; Ave., F.2d at see Douglas 903 916 844(h)(1) apply to gress section to .intended v. Environmental Waste e.g., U.S.E.P.A. Lee, burning at cases. 935 F.2d cross Cir.1990), (7th 327, Control, Inc., approach to the tradi- runs counter Such'an 975, 111 499 U.S. rt. ce 1621, statutory tional method of construction: (1991); Continental L.Ed.2d lenity] operation at “The rule comes into [of Drivers, Chicago Truck 916 F.2d v. Can Co. process construing what the end of Cir.1990) (7th (Flaum, J., 1154, concur- beginning Congress expressed, has not at the legislative history in ring). To examine overriding being le- as an consideration of and, case, apply the rule of thereby, wrongdoers.” Callanan v. United nient to contrive or manu- lenity, require would us States, 587, 596, 321, 326, 5 364 U.S. 81 S.Ct. clearly in- ambiguity, which is

facture some legislative Consulting L.Ed.2d 312 States, v. United appropriate. See Bifulco ambiguities history intended to resolve 100 S.Ct. statute; language it (1980); that arise from the v. Mar United States L.Ed.2d Cir.1990) (en (7th shall, ambiguities. is not intended to create See -, banc), aff'd, 2252; 111 S.Ct. U.S. Bifulco, 447 at . (1991) Callanan, 364 U.S. at Thus, bypassed the because the Lee court Eighth S. Circuit Caselaw. unambiguous language clear and of section rely chiefly Eighth on an The defendants 844(h)(1), reject we its determination that support'their position Circuit case 844(h)(1) apply section does not1 to cross 844(h)(1) apply does not to this case. section burnings rights another’s civil done to violate Lee, 935 F.2d 952 States United under 18 241.8 Cir.1991), applicabili- the court addressed 844(h)(1) ty to nondestructive cross of section Summary. L inappli- burning cases and found the statute 844(h)(1) We hold that section is clear analy- one-paragraph In a cable. at 958. Id. mandatory unambiguous. provides It sis, legislative first to the the court looked five-year prison anyone term for who has 844(h)(1) instead of to the history of section explosive using convicted of or an been fire congres- to discern language of the statute just any felony not limited commit and is reading on its sional intent. Based Further, application arson eases. of sec legislative history, the court determined that 844(h)(1) burnings designed to tion to cross 844(h)(1) only apply was meant to section person’s rights violate a civil is not absurd Id. arson cases. statutory and does not frustrate the overall Yet, rightly in the district court our case need, therefore, scheme of section 844. No observed, “puts approach the Lee court’s legislative exists for us to examine the histo v. cart the horse.” United States before ry Congress’s to determine intent. Con (N.D.Ill. 399, F.Supp. Hayward, 1991). gress’s intent is clear from the words it chose initially examining than Rather 844(h)(1).9 in statutory language to whether it to include section See Central determine Eighth felony. 8. Cir- another federal Since the federal felo- Because of the conflict with Lee, cuit's opinion in we have circulated this § decision ny conspiracy, of' under 18 U.S.C. is pursuant to the entire court to Seventh agreement complete at the time that the is 40(f). majority judges Circuit A in active Rule made, gives no the use of fire in the case bar service to rehear this cáse en banc. voted not conspiracy. vitality to the commission of the banc.) (Judge Cudahy voted to rehear this case en formulating The fire was not an aid in agreement. argue for the first time on The defendants also argument have waived this be- The defendants appeal that present it court. cause did not district 844(h)(1) requires § [t]he offense of 18 U.S.C. Rentschler, E.g., Banking in the commission of Textile Co. defendant to use fire Cos., origin, any F.2d or national the activi- v. ‍​​‌​‌‌‌​‌​‌‌​​​​​​‌​‌​​​​‌​​​‌‌​​‌‌​‌‌​‌​​​​‌‌‌‌‍Cullum States ties, services, Cir.1992); organizations Local Iron Workers or Trustees of facilities Corp., (a) v. Allied Prods. Pension Trust described in subsection 4 this sec- (7th Cir.), tion; cert. or 107 L.Ed.2d 493 U.S. 110 S.Ct. (2) affording person another or class (1989). persons opportunity protection or so participate_ [to 3631(b) § U.s.c. B. m appeal, point on In their second $1,000, shall be fined not more than or argue burning pro that cross is imprisoned year, not more than one or They gov speech. contend that the tected both..'.. unconstitutionally regulated their ernment 3631(a)-(b) added). (emphasis 42 U.S.C. under 42 speech by prosecuting them U.S.C. 3631(b), describe as a “content- which Expressive n Conduct. narrowly tai regulation” that is not based 3631(b) determining whether section vi- any compelling governmen lored to achieve olates defendants’ First Amendment Hence, they that the maintain tal interest. rights, we must first determine whether this applying the statute to court erred in district conduct, type burning expressive of cross is this case. giving the defendants a claim to First part of the Fair which Section protection against Amendment their convic- Act, 3601-3631, §§ Housing Johnson, 397, 403, tion. Texas v. 491 U.S. statute that states federal misdemeanor 2533, 2538, 109 S.Ct. 105 L.Ed.2d 342 part: Although Supreme the United States Court Whoever, acting under whether or not rejected apparently “the that an has view law, by force or threat of force color of variety of conduct can be labeled limitless injures, willfully or interferes intimidates speech person engaging whenever the in the with, injure, attempts to intimidate or or idea,” thereby express an conduct intends with—' n interfere recognized may the Court has “that conduct (a) race, color, any person because of his sufficiently of com- imbued elements sex, ..., handicap familial religion, sta- scope munication to within the fall ..., origin or national and because tus Fourteenth Amendments.” Id. at First and selling, purchasing, he is or has been (citations and internal 109 S.Ct. renting, financing, occupying, or con- omitted). deciding quotation marks “In sale, pur- tracting negotiating-for or particular possesses conduct suffi- whether chase, rental, occupation financing or bring cient communicative elements any dwelling, applying partici- or for or play, into we wheth- [ask] First Amendment service, any pating organization, or convey particularized mes- ‘[a]n er intent to facility relating selling the business sage present, the likeli- [whether] dwellings; renting or message great that the would be hood was (b) any person because he is has ” it.’ understood .those who viewed Id. been, or in order to intimidate such Washington, (quoting Spence v. any person person or class Or other 2727, 2730, 410-11, persons from—(cid:127) (1974)). (1) participating, without discrimina- case, race, color, the evidence religion, In this showed

tion on account of ..., sex, ..., tell burned the crosses to handicap status the defendants familial 844, (7th Cir.1981); punishment disproportionate to cross v. and 853 see also United States 1305, (N.D.Ill. develop ar Hayward, burnings. do not this F.Supp. 764 Because assertion, 1991) gument beyond we decline (denying that mere the defendants' motion to dis See, miss). e.g., United States v. Berkow The defendants also that the im it. contend consider 1376, itz, (7th Cir.), position five-year mandatory penalty, 1384 cert. of the con 927 -, 141, imprisonment 112 S.Ct. 116 L.Ed.2d secutive to the term of for the U.S. - offense, (1991). predicate is cruel and unusual 108

1250 (and Regulation. doubt 2. Extent no the Jones Governmental in those .household of crosses) burning saw the who anyone else burnings Because the cross involved unwelcome in Kee- were people that black conduct, expressive to consider we need was association blacks neyville and that government’s regulation of that whether the burning Anyone who saw the approved. suppression of conduct was related to the crosses, in the Jones house- especially those Johnson, expression. 491 free U.S. likely hold, highly to understand so, apply height 109 at 2538. If we a S.Ct. Indeed, may pro- burning cross meaning. not, standard review. Id. If we ened peo- to different different connotations vide stringent in apply the less test announced certainly burning view a ple. would Some O’Brien, 367, 377, States v. United cross, physical violence and precursor “a as (1968). 1673, 1679, 20 L.Ed.2d 672 88 S.Ct. and ... an against African-Americans abuse Id. symbol hatred and violence unmistakable suprema- of racial notions based on virulent 3631(b) purpose of section is to Jones, Proscribing Hate: cy.” H. Charles Harm, right protect the of an individual to associate Between Criminal Distinctions freely anyone, regardless in his home with 18 Wm. Mitchell Expression, Protected end, (1992). Inevitably pro To the statute the cross race. achieve L.Rev. 948 degree peo of ex- burnings involved some acts of willful intimidation here hibits conduct,' absolutely pro- statute, then, albeit not pressive ple based on race. The is Paul, City St. wrongful tected conduct. R.A.V. in curtailing aimed at conduct — 1, -, -, U.S. -, - & n. 112 intimidation, form of threats or and not to 1, 2544, & n. S.Ct. curtailing any particular form ward (1992) (stating that burn- cross Mitchell, L.Ed.2d speech. See Wisconsin v. subject that is not expressive is conduct -, 2200-01, -, and, protection Amendment to total (1993). Fir.st Consequently, L.Ed.2d 436 because therefore, may punished under certain 3631(b) content-neutral, it does not section is laws). doubt, wanted to the defendants No such, directly regulate speech. As rather dislike, hatred, even of blacks express their review, heightened than a standard of we burnings. through the cross But the act of employ the lesser standard enunciated fear, burning promotes intimi- cross also O’Brien: dation, рsychological injury. Therein government regulation sufficiently jus- is burning, done in this lies the reason cross as power if it the constitutional tified is within case, protection. First Amendment See lacks Government; if impor- of the it furthers an (“Non-verbal at -, at 2544 id. interest; governmental tant substantial expressive activity can be banned because of governmental if the interest unrelated to is entails, it but not the action suppression expression; of free and if Cloaking expresses.”). it. an act that ideas alleged the incidental restriction on First portends guise protected violence with greater Amendment freedoms is no than is expression nothing claiming more than essential to the furtherance of that inter- protects fighting Amendment that the First est. -, words. Id. (“Fighting analogous are thus words O’Brien, 391 U.S. at 88 S.Ct. at 1679. noisy ... sound truck both can be used to O’Brien, 3631(b) qualifies Under section aas idea; has, convey neither an but and of justified sufficiently regulation. Amendment.”). itself, upon the First a claim 3631(b) part Because section of the Fair Accordingly, expression, some forms of Act, Housing intimidate, proper its enactment burning was a cross used to ease and, government’s damaging power exercise of the are harmful and to others under such, enjoy protecting the Thirteenth Amendment to do not cover of eradicate all speech badges slavery.10 in the constitutional sense. incidents and Williams Act, 90-284, Housing Rights §§ The Fair 3601- Civil Act of Pub.L. No. (1982), originated etseq., at Title VIII of the 82 Stat. 81-89 The "Pre-

1251 (a (8th Cir.), treason, Co., 819, against conduct law for 499 F.2d 825 v. Matthews 1021, 495, example, telling enemy is violated denied, 42 95 419 S.Ct. cert. U.S. secrets), particular denied, the nation’s defense 1027, 294, cert. 419 U.S. L.Ed.2d subcategory proscriba- content-based of a (1974); 507, 42 L.Ed.2d 302 see 95 S.Ct. speech swept up class of can ble inci- Harrison, 455, 470 & n. 413 U.S. Norwood v. dentally within the reach of a statute di- 2804, 10, 10, n. L.Ed.2d 2813 & 37 93 S.Ct. speech. rected at conduct rather than 3631(b) (1973). Also, advances an section 723 Thus, example, sexually derogatory governmental in- important and substantial words,” words, “fighting among may other person’s right to occu- by protecting a terest produce general a violation of Title VII’s dwelling fearing threats or in- py a without prohibition against sexual discrimination in on race. We conclude that timidation based employment practices. govern- Where narrowly tailored ‍​​‌​‌‌‌​‌​‌‌​​​​​​‌​‌​​​​‌​​​‌‌​​‌‌​‌‌​‌​​​​‌‌‌‌‍to achieve statute target ment does not conduct on the basis case, the statute did not that result. content, expressive its acts are not burning expres- cross as a form proscribe regidation merely shielded because from — R.A.V., at -, conduct. U.S. sive Cf. they express discriminatory phi- idea or -, 2541, (finding uncon 112 2547 S.Ct. losophy. specifically pro- a statute that stitutional burning, among things); other scribed cross R.A.V., at -, 112 Johnson, 414, 491 U.S. at 109 S.Ct. added) (citations omitted); (emphasis principle underly- (noting that the “bedrock (“An Gilbert, illegal see also 813 F.2d at 1529 ... is that ing the First Amendment protected by course of conduct is not the first may expression prohibit Government merely amеndment because the conduct was society finds the simply an idea because part by language in carried out in contrast to disagreeable”). Sec- idea itself offensive If contains both direct action. conduct 3631(b) prohibited elements, the defendants’ cross non-speech tion if speech and and Con- they willfully authority regulate intended to burnings gress has the the non- ’ conduct, speech in the Jones restrictions . on threaten and intimidate those incidental constitutionally people speech in of. are not entertaining' black freedom household for - invalid.”) (citations omitted). Gilbert, Accordingly, v. their home. See United States Cir.) (9th we determine that incidental 1523, restrictions (explaining 1529 813 rights in alleged on the First Amendment in- requirement in “of that the section 3631 necessary greater this case are no than is to insulate the stat- tent to intimidate serves government’s valid interest of further pro- application unconstitutional ute from protecting rights of those the Jones denied, 484 U.S. speech”), tected cert. freely to associate household whomever (1987). The 98 L.Ed.2d they choose. interest, then, government’s in this case is expres- of free suppression unrelated Summary. sion. 3631(b) regulates the We hold that section Finally, though expressive speech even wrongful threats and intimidation conduct of conduct; may proscribed be'involved on its race and is content neutral based on 3631(b) that is insufficient to make section Gilbert, F.2d at 1528-31 face. See also Supreme As the Court

unconstitutional. 3631(b) constitutional); Mun (ruling section R.A.V., stated in States, F.Supp. ger v. United (same). (N.D.N.Y.1992) application, circumstances vio- since words can some 3631(b) therefore, did to this case against speech of section late laws directed not but [appears] at and amended attached tion 42 U.S.C. as codified vention of Intimidation" section was rights legislation IX and to the civil as Title incorporated Housing into the Fair Act as sec- Gilbert, United States (1968). The text of sec- tion Stat. Cir.), cert. L.Ed.2d 127 deprived the defendant’s cross-examination First Amendment the defendants’ not violate meaningful opportunity a to elicit defense of rights. available, likely that was relevant information credibility effectively impeach to of the C. Cross-Examination witness.” Id. appeal, the point on defen- In their third Proceedings. 1. Eviction court erred in argue the district dants that challenge the dis The defendants of certain curtailing the cross-examination grant government’s mo trict court’s They that government witnesses. maintain limine, precluding tion in prevented them court’s actions the district cross-examining occupants of the from effectively impeaching those witnesses. from proceed pending about their eviction house Amend- that the Sixth “It is well-established that the testi ings. The defendants assert op- only guarantees the defendant ment mony necessary that the occu to show effective, limitless, not cross- portunity for pants left the house six months after the Muhammad, examination.” States United burnings evicted cross were Cir.1991). (7th 1461, 1466 928 F.2d burnings and not because the cross intimidat maintain ed them leave. The defendants for effective right opportunity, to an testimony regarding the eviction cross-examination, however, give does not proceedings was to show that the relevant license to conduct defense counsel crosses, defendants burned the not out of A chooses. trial [he] cross-examination animus, racial but to the “constructive cause impose rea- judge has broad discretion eviction” of the tenants. inquiry counsel’s sonable limits on defense The district court its discre- did abuse prosecution potential into the bias of testimony regarding finding tion in about, witness ... based on concerns proceedings eviction irrelevant. The fact harassment, preju- among things, other from that the tenants were later evicted issues, dice, the witness’ confusion of charges at nothing house had to do with the repetitive safety, interrogation that is question hand. The main in this case was only marginally relevant. Limitations on intimi- whether the defendants intended to do not interfere with the cross-examination victims, date the not whether the victims rights pro- defendant’s Sixth Amendment 241; actually were intimidated. 18 U.S.C. sufficient vided that cross-examination was 3631(b). 42 U.S.C. Evidence of the vic- a'jury to evaluate defen- [the to enable little, if tims’ state of mind would tell us theory to make a of defense and dant’s] anything, of mind about the defendants’ state discriminating appraisal of the witness’s doubt, burning the crosses. Without motives and bias. evidence at trial showed that the defendants burned the crosses to intimidate the tenants (citations quota- Id. at 1466-67 and internal right and to interfere with their to associate omitted). “In order to tion marks determine freely people in their home with of another placed right on the whether the restrictions Hayward race. had Both and Krause stated to the level of cross-examine a witness rise burnings before the cross disliked deprivation, we ‘look to the constitutional (in words, people the idea of black them record as a whole ... and to the alternative “eoons”) Keeney- “niggers” coming into ” open impeach means the witness.’ Unit- particular, Pauley ville. Robert testified (7th Cameron, ed States v. Hayward “nigger” warned him about a Cir.1987) rel. (quoting States ex United living Pauley in the house had rented to the Franzen, Blackwell v. And, family. Jones Steven Randall testified Cir.1982), cert. participate him that Krause had invited (1983) (cita burning, first cross because “there was omitted)). bitch, tions must resolve whether “We nigger living with a white and [Krause] idea, Keeneyville.” imposed on the didn’t like the restrictions that the Court Granted, jury. facing possi- Miller was a the government did Consequently, because oneTyear prison violating left the ble term for his that the tenants to show not have burnings, eighteen years in supervision, the cross but he faced result of house as a proceed- jail burnings his in the two cross had testimony regarding their eviction for role charges gov- cooperated government. with the irrelevant to he not ings was defendants. brought against expected government if not Even Miller ernment therefore, court, conviction, did not abuse The district to tell the state about his federal information, See ruling in on this matter. pro- discretion had its that would have limited Muhammad, at 1466-67. weighed against the real bative value when government: from Miller received benefit

2. Thomas Miller. felony being charged a in not federal testify exchange agreement against for to his challenge the next The defendants the defendants. government’s grant' of the court’s district to curtail the cross-exami motion in limine out, Also, pointed Mil- as the district court a prior Miller. Miller had nation of Thomas It ler’s federal conviction was not a secret. un conviction state-court misdemeanor for part public Hayward, 772 was record. he weapon for which was lawful use of a F.Supp. Consequently, Miller was at 404. supervision for one placed on state-court completely protected having from his su- not subject to revoca year. supervision The revoked, pervision -government even if the Miller was convicted of in the event tion promised petition had not to file a with the The assert that crime. another (The state. record does not demonstrate petition to did not file a government government promise that thе made such though Miller supervision, even revoke the Miller.) Thus, rightly to the district court a misdemeanor guilty to federal pleaded had would, have found at trial that Miller not burnings. Had a in the cross for his role during testimony lie his been motivated to filed, the defendants contend petition been supervision. of his defeat revocation If'he. one-year state that Miller have faced would cooperate government, with the he did not anticipated a They claim Miller prison term. many years in a have faced federal would government in the form of benefit from the If to lie in favor of the prison. Miller were notifying the about government not state prevent it been to government, would have As misdemeanor conviction. his federal felony charges, serving for the federal time such, argue that should the defendants year prevent serving one for rather than to question Miller on this have been able to supervision. De violating his state-court Cf. challenge point during cross-examination Arsdall, 673, 679, 106 v. Van laware motivation, interest, credibility, and bias. .his 1431, 1435, 89 L.Ed.2d pro The district court did err op- had the Significantly, the defendants hibiting asking from Miller the defendants ask during cross-examination to portunity prior conviction. As about his state-court had made with the Miller about the deal he noted, prior properly “the the district court testify against the defendants government to could not have been conviction introduced felony. being charged with a federal avoid attacking credibility purposes of 'the defendants to court also allowed offense that conviction was a misdemeanor Miller’s explore during cross-examination dishonesty or false state did not involve history lying law enforcement authori- (citing Hayward, F.Supp. ment.” investigation of this crime. during their ties 609(a)). Federal Rule of Evidence were able important, the defendants Equally testimony his that Furthermore, question Miller about court did to the district people. prejudiced black ruling he was at trial not abuse its discretion And, question him about able to Rule were testimony under was inadmissible shortly party a Halloween attendance at Rules of Evidence. The his 403 of the Federal burnings, he wore at which testimony pro after the cross had low court found that Buck- as the makeup and dressed value, impact was blackface prejudicial bative that its the “Little Rascals” character from mislead wheat great, and that it could confuse and testify badly rope tied as wanted Lawler to about how his neck was movies. Around Randall, donning government a Ku him had treated before his a noose. Richard outfit, grand jury testimony jury accompanied Miller to the order for the Klux Klan rope that was party the end of the have understood Lawler’s state of mind dur- and held ' testimony. around Miller’s neck. The defendants also have maintained evidence would part in both cross Because Miller took jury judged enabled the to have better Lawl- government burnings, he a crucial wit- was credibility-during testimony. er’s his trial At ness, testimony probably whose harmed the trial, following the defendants made the offer Realizing damage defendants the most. the proof, colloquy drawn from Lawler’s with case, the Miller could do to their defendants during pretrial investigation: the defense its (and sought during on cross-examination jury) Question [by you argument to the to convince the Did have occa- defense]: them, jury spoken that it was not but Miller who was sion to be debriefed or to at all burnings. They you jury? grand behind the two cross also before went attempted jury that Miller to show the was a Yes, [by I Lawler]: Answer did. liar and that he had made an bald-faced Question: grand jury was in the Who be- government arrangement with the to save yourself? sides himself to the detriment of the defendants. Washington Answer: Don Glanzer and the leeway conclude that the the district We agent. gave court the defendants on cross-examina- Question: they say you What did at this jury tion was sufficient to allow the to evalu- time? theory ate the defendants’ of defense as well They Answer: told me I had better start permit oppor- as to the defendants sufficient telling going ]ing I’m the truth or to f[ bring tunities to the value of Miller’s testimo- — jail, telling and then I told them I was the Muhammad, ny doubt. See 928 F.2d at into up truth. Then sort of stood in front Cameron, 1467; 814 F.2d at 406. Based on said, liar, ]ing of me and ‘You’re a and f[ testimony jury during the the heard Miller’s — your lawyer get ]ing right in here now cross-examination, f[ say we cannot — you’re going jail. ]ing to f[ jury might significantly have had a different bias, impression credibility, of Millerls inter- Question: Was it Glanzer who said that or est, testify or motivation had heard him Washington guy? supervision. about his state-court Van Ars Washington guy Answer: I think the was doll, 1436; 475 U.S. at 106 S.Ct. at cf. doing the one that in there. Alaska, 317-20, Davis Question: he Was introduced as U.S. 1105, 1111-12, Attorney Washington, agent, from an FBI Accordingly, we conclude that the district or what? prevent- court did not abuse its discretion Attorney. I he Answer: think was a U.S. ing asking Miller defendants from about prior his state-court misdemeanor conviction. no We find error the district court’s only guarantees “[T]he Sixth Amendment ruling testimony regarding to exclude the effective, opportunity defendant the alleged jury threats made to Lawler i The limitless, Muhammad, cross-examination.” Lawler, already had heard a hostile albeit 928 F.2d at 1466. witness, testify insignificant11 on direct exam ination that an Assistant United States At Lawler. Richard (“AUSA”) torney had him threatened jail testimony prior grand

The defendants also contend that to his before the granting gov jury. testimony the district court erred in was Such sufficient to raise regarding jury ernment’s motion in limine in the minds of the doubts members mind, They credibility Lawler. cross-examination of Richard about Lawler’s or state of witness, opinion, except maybe 11. In the district court’s Lawler's testi- Lawler as a called mony did not hurt the defendants’ case. The preclude missing witness instruction. (cid:127) why government court did not understand statement, having testify pro- objected without Lawler about ick’s the defendants fanity allegedly had AUSA with moved for a mistrial. used The court denied the mattеr, him. Such district court motion then jury instructed ‍​​‌​‌‌‌​‌​‌‌​​​​​​‌​‌​​​​‌​​​‌‌​​‌‌​‌‌​‌​​​​‌‌‌‌‍the to con- defendants, correctly pointed out to Agent was testimony Glanzer’s regarding sider consider, better suited for court to after Remick not for the truth of the matter as- verdict, serted, on a motion to dismiss the indict- but for the purpose sole of determin- prosecutorial based on ment misconduct: Remiek’s state of mind at the time he (These “Any inquiry broader into the existence of made the statement. court rulings prosecutorial prov- misconduct not the are appeal.) not on jury, properly ince of the but was more left then cross-examined to the court to be decided as a matter of Agent During Glanzer. this first cross-ex- Hayward, F.Supp. (citing law.” amination, the defendants did not ask or seek Swiatek, United States v. questions to ask twenty-five about the wit- (7th Cir.), denied, cert. Agent nesses Glanzer had interviewed. The (1987)). 245, 98 L.Ed.2d The court government proceeded then with a redirect properly jury also instructed the members Glanzer, Agent examination of and the defen- they questions “that could consider and com- opportunity dants had the to examine him attorneys per- ments made defendants’ again on recross. The threats made to Rem- taining alleged governmental to misconduct ick Agent'Glanzer’s dealings with the to the extent that the material bore on the twenty-five other witnesses were not men- Thus-, credibility of witnesses.” Id. the dis- tioned on redirect either or on recross. The trict court did not abuse its discrеtion in government then conducted a second redirect curtailing the cross-examination of Lawler. Agent examination of ques- Glanzer. The Muhammad, See 928 F.2d at 1466-67. tions and during answers this second redirect nothing examination had to do either with Donald Glanzer.

J. Remick’s claims that the defendants had The defendants further him Agent contend that threatened or with Glanzer’s deal- ings, Nevertheless, curtailing the district court erred in with the other witnesses. Agent recross-examination, of FBI on their cross-examination Donald second the de- they sought Glanzer. The maintain fendants Agent ques- defendants were to ask Glanzer prejudiced Agent because Glanzer testified tions about the threats and about his inter- on direct during examination that interro views with the other witnesses. his The district (a gation Jeffrey Remick witness who court denied the of. tes defendants chance to defendants) against began questions, tified questions Remick ask those cry Agent and told had preceding Glanzer he was fearful no relevance to the redirect Consequently, the defendants and their friends would harm we determine examination. him if he testified the defendants. court did not district abuse its -dis- argue The making ruling. defendants that the district court cretion in its The defendants. prevented curing any prejudice them from were restricted on their second recross-ex- stemming Agent testimony. asking Agent amination to questions from Glanzer’s Glanzer Specifically, they scope assert that that were within the court denied of the questions opportunity asking government them the Agent Glan had asked him on its second zer on cross-examination whether of the redirect examination. See Fed.R.Evid. 611(b); Burrell, twenty-five other witnesses he had inter United States v. 963 F.2d Cir.), viewed in this case had ever stated that the cert. defendants, -, particular Hayward, in had L.Ed.2d 270 threatened them. Summary.

The district propri- court did not err. The ety of the court’s preclude decision to cross- We conclude that the district court did not sequence examination is obvious when the making abuse its evidentiary discretion its Agent events is examined. rulings.. After Glanzer No Sixth Amendment violations testified on direct examination about Rem- place. took The placed restrictions court going ing jail.” he to “f— The the truth was cross-examination

on the defendants’ agent an told meaning- maintain that FBI deprive them of a not witnesses did Haga, Haga’s five-year information in front of old elicit relevant Scott opportunity to ful son, Haga five impeach credibility of would be sentenced to likely jail bias, interest, years perjury unless he testified show the witnesses or truthfully. Hagen, Muhammad, regard With to Thomas motivation. See an Cameron, agent assert that FBI told 1466-67; the defendants 814 F.2d at 406. jail go him he would unless he told the Misconduct during testimony. Lastly, Prosecutorial D. truth the de- his yelled at fendants that two contend AUSAs point on fourth and final In the defendants Jeffrey he Remick before testified the district court erred appeal, claim jury. grand They claim the told AUSAs ground dismissing indictment on up,” f— him “a Remick “shut the called The defendants prosecutorial misconduct. er,” punk” áss and a “motherf— and smart four wit- government threatened contend liar,” go said he was “f— who would nesses, against the defen- who had testified years jail perjured if for five he himself dants, prosecutions perjury unless prison a that he would make the inmates in The defendants also maintain told the truth. girlfriend.” “nice pro- government used abusive and that the language two of witnesses. fane toward those government using any profani- denies defendants, govern- According to the Remick, ty except that with one of the AU- reasonably have caused ment’s conduct could him the f— he up” SAs told to “shut when have conformed their testi- the witnesses to quit lan- yelling using refused to coarse government’s mony support position, about,its The is guage. government silent process violating the defendants’ due thus profane language with The use Lawler. rights. anyone government further denies that told that have Remick he would made another clear, process made “due As this court has girlfriend.” government inmate a “nice The leeway ágen- law grants wide enforcement concedes, however, pressure it applied that investigation of crime. Assum- cies in their truth, on the to tell the witnesses right ing that no constitutional independent those witnesses were recalcitrant at first violated, governmental misconduct has been talking government, about incul- about outrageous process due truly must bе before defendants, pating telling or even about prevent conviction the defendant.” will But, during testimony. the truth their Kaminski, 1004, F.2d United States v. 703 government underscores that each of the added). (7th Cir.1983) (emphasis 1009 We and, testify truthfully four witnesses did as questioned that has the va- note this circuit such, prejudice the tactics it used did not lidity outrageous govern- of the doctrine any way. defendants yet ment conduct and has to overturn ground. E.g., on that United conviction Outrageous. 2. Conduct Not (7th Olson, 1472, F.2d States v. 978 1481 -— denied, Cir.1992), -, 113 cert. U.S. We conclude that the facts of this case do 1614, (1993); 174 123 L.Ed.2d United prosecutorial not demonstrate misconduct on (7th Miller, States v. government. alleged behalf con- Cir.1989). outrageous not duct was so that it violated Miller, process rights. the defendants’ due Alleged Wrongful Conduct. 1267; Kaminski, 891 F.2d at 703 F.2d prosecutorial alleged gov- The- miscon not Although we do condone the place following witness, profanity any duct took with the witnesses: ernment’s use of Lawler, Haga, Hagen, support Richard Scott Thomas the record before us does .Jeffrey government Remick.- The con conclusion that used such outrageous told language tend that an AUSA Richard with the Lawler witnesses that grand jury he he before testified to a dismissal the indictment would be war- addition, nothing In “f—ing was a liar” and that unless he told ranted. in the record when, prior of the four witnesses lied sentencing, indicates to his govern- testifying, government or that the told parte proceeding while ment held an ex before the contrary, the thеm to lie. On the evidence district court and had his bond revoked on they during told the truth charges shows that each attempted that he had to bomb testimony. Hagen’s Hayward Thomas truck. maintains that a investigation defense uncovered that Granted, government told the witness- person another had tried to bomb the truck. and, testify truthfully had to if es so, Even district court stated in re- the: not, jail. go procedure, would That sponse very argument: to this however, even if carried out in a caustic Hayward appears to be under the mistak- manner, is no cause to the indictment dismiss impression en that the court detained him v. the defendants. See United States involving because of an (11th incident Tom Ha- Cir.1985), Holloway, 778 F.2d fact, gen. the court’s decision was denied, 1158, 106 cert. Hayward’s inability based on to rebut the and cert. L.Ed.2d presumption of detention in 18 U.S.C. As 3143(a)(2). Hayward failed to “[tjhere show that noted, properly the district court was a there substantial likelihood that he nothing wrong government with the inform- would succeed on a acquittal motion for ing consequences witnesses of the of break- a motion for new trial. Since the court has Hayward, 772 F.Supp. the law.” again rejected Hayward’s arguments in its 657); (citing Holloway, 778 F.2d at see also denial of acquittal defendant’s motion for Viera, United States v. trial, or a new the court finds no Cir.1988) (“A basis for prosecutor always enti- reconsidering Hayward’s defendant deten- attempt perjury pun- tled to to avert and to pending tion sentencing. conduct.”). ish criminal Hayward, 406-07; F.Supp. see also Moreover, case, government Hayward, United F.Supp. States trying was faced with to solve a crime that (N.D.Ill.1991) (granting govern the small, community. in a place took close-knit Hayward ment’s motion pending to detain crime, people Most of the involved in the sentencing). appeal, Hayward On has not it, who knew about were either related or any alleged presump- facts overcome the many years. had known each other for As tion of detention. The district court’s rea- expected, government initially would be the son, therefore, pending to detain him sen- up against came a wall of silence and a tencing adequate, was and we find no error. labyrinth investigation of lies its of this regard, government crime. the was III. Conclusion justified applying pressure lawful on the respect The district court did not err with witnesses to convince them that had to any points appeal. of the four on The testify truthfully. See United States v. Bou 844(h)(1) § properly applied court 18 U.S.C. nos, (“ Cir.1984) 730 F.2d ‘[I]n 3631(b) § and U.S.C. to this case. The evaluating government whether conduct is court was also within its discretion to limit outrageous the court must consider the na- witnesses, the cross-examination of certain ture of'the crime and the tools available to correctly and the court determined that the ”) law enforcement officers to combat it.’ government’s conduct some toward of (quoting Twigg, United States v. 588 F.2d prosecu- witnesses did nоt reach the level of (3d Cir.1978)). result, n. aAs we Likewise, torial misconduct. the district affirm the district court’s denial of the defen- revoking Hayward’s court did not err bond dant’s motion to dismiss .the indictment on detaining pending sentencing. and in him prosecutorial the basis' of misconduct. Accordingly, the court is AFFIRMED. district Hayward’s Bond and Detention. FLAUM, Judge, concurring. Circuit Hayward’s Included within contentions misconduct, prosecutorial join opinion applica- about he makes a I the court’s as to its 844(h)(1) sparse argument § prejudiced that he and concur in tion of 18 U.S.C. any person with —... 42 or interferes application of to its judgment as been, in order to intimidate in order to he is or has separately § I write U.S.C. participating, ... without person thoughts about these such express some additional from— color, race, reli- Hayward on account discrimination used to convict were statutes which ..., ..., sex, handicap familial status gion, Krause. any occupation of origin”.in the or national majority with, agree with the begin I To 3631(b). § While sec dwelling. 42 U.S.C. statutory prevailing rules under 3631(b) pure force bans the use as tion construction, obliged take 18 we are intimidation, this case involves means 844(h)(1) its word enhance making proscribes: activity that it other “uses fire any individual who punishment of threats. felony which explosive to commit or an in a court of the United may prosecuted be in- when the threatener A threat is made Con about I am dubious whether States.” recipient of his threat he forms the under burnings tо fall intended cross gress some contemplating the infliction of harm 844(h)(1), legislative his- which—the another, section recipient upon often the himself. to in- amended tory strongly indicates —was symbols may words or be medium Either purpose “fire” threat; the word anyone clude with our as familiar of a prosecution of arson-related facilitating the aware, history burning cross is nation’s Lee, States offenses. See United communicating in- less no effective (8th Cir.), grounds, vacated on other spoken message than are written or tended part (Aug. granted in reh’g en banc Although have undeniable threats words. Panneton, 1991); Federalizing John (indeed, speech qualifies expressive content cf. Evolving Response to Federal message Fires: ex- a threat virtue of it Crimes, 23 Am.Crim.L.Rev. Related Arson poses spe- no presses), First Amendment (1985) of “creative (describing the efforts prohibition. Threats cial to their obstacle statutes, in- adapt federal prosecutors” to rights of individuals to interfere greater to cover cluding violence; 18 U.S.C. they are free from fear of crimes). Never- of arson-related numbers costly society; and disruptive theless, plain meaning of the stat- since the nothing to the usually little or contribute type, I be- encompasses ute offenses Rogers v. marketplace of ideas. See United application to the facts of this that its States, 35, 46-47, lieve improper. (1975) was not (Marshall, J., case con- 45 L.Ed.2d Velasquez, 772 curring); States v. United proper apply 42 agree I that it was to also (7th Cir.1985), 1348, cert. de 1356-58 actions, § but 3631 to the defendants’ 1211, nied, 89 106 S.Ct. 475 U.S. question approach I the of that stat- would reason, that one L.Ed.2d 323 For constitutionality differently than the ute’s argued has that influential commentator view, determining to majority. my In how threats, speech of to making of like the use Supreme decision in apply the Court’s recent extortion, prices, — perjury place or fix commit Paul, U.S. -, 112 City R.A.V. v. St. of on, bookies, entirely falls and so bets (1992), sharply S.Ct. coverage First Amend- of the outside I ruling, matter. 5-4 is a difficult divided Schauer, protection. ment’s See Frederick although and the that section 3631 conclude Amendment: A Categories the First bear a under review.in R.A.V. ordinance Acts, 265, 267- Play in 34 Vand.L.Rev. Three similarity, struc- superficial internal R.A.V., at -, (1981), U.S. 82 cited requires respect in a crucial tures differ that (Stevens, J., concurring in 112 S.Ct. 2563 uphold this law. us to result). states, majority part is as the Section Congress passed has numerous laws subchap- “Prevention of of the Intimidation” See, § e.g., 871 proscribe 18 U.S.C. Housing Fair Act. threats. ter The subsection (threats against president and successors punishes by applicable to this case misde- (threats by § mail presidency); id. 876 “by who force or to individual meanor (retaliatory § injure kidnap); id. 1513 willfully injures, or threat of force intimidates to 1259 witnesses); against speech tion speci informants and that is “addressed to ... threats (threats assault, kidnap, topics,” or mur- fied disfavored if topics., to even those id. officiаls). by fighting have communicated means of federal These statutes der are words, constitutional, impermissible is an consistently upheld as effort at censor been by at -, ship government. See id. despite the fact that criminalize utter- S.Ct. expressive content. ances because of their States,

See Watts v. United 394 U.S. R.A.V. exceptions identified several limited 707-08, 1399, 1400-01, 22 L.Ed.2d overarching precept to this of content-neu- curiam) (1969) (per (holding First, trality. explained, the Court content- protect First Amendment does not “true may based distinctions be drawn within a President); against threats” United proscribable speech class of if the basis for Varani, States very the distinction is “the reason the entire Cir.1970) (“[S]peech protected is not when it proscribable.” is class Court offered the very E.g., of the crime vehicle itself. following example, helpful analysis for (1964) (Extor §§ ... ... 18 U.S.C. present ease. Threats).”); Barry, tion and see also Boos v. government The federal can criminalize 312, 326, 1157, 1166, 485 U.S. 108 S.Ct. only those threats violence that are di- (1988) (commenting favorably L.Ed.2d 333 on President, against rected see 18 U.S.C. prohibits activity a law that undertaken to why 871—since the reasons threats of harass”). “intimidate, coerce, threaten, or violence are outside the First Amendment (protecting individuals from the fear of say proscribable, To that threats are how- violence, disruption from the that fear en- ever, does not end the matter genders, possibility and from the that vio- ‍​​‌​‌‌‌​‌​‌‌​​​​​​‌​‌​​​​‌​​​‌‌​​‌‌​‌‌​‌​​​​‌‌‌‌‍constitutionality of section 3631. The contro- occur) special lence will have force.when holding City versial of R.A.V. v. St. Paul applied person the President. category speech was that while an entire States, Watts v. United may proscribable (obscenity fighting be 1399, 1401, 22 L.Ed.2d 664 words, example), may impermissible for it be (1969).... But the Federal Government proscribe only category if subset of that may only criminalize those threats along the subset is drawn content-based pol- the President that mention his R.A.V., example, lines. the Court held icy on aid inner cities. although may permissible pro- it . words, at -, Second, fighting impermissible scribe all it is Id. at 2546. S.Ct proscribe only subclass’may fighting those words that content-defined be treated dif anger, ferently “arouse alarm or resentment in others if the subclass is associated with ” color, race, creed, religion, “particular ‘secondary on the basis effects’ gender,” speech, regulation ‘justified as did Paul’s “the St. Bias-Motivated so that Ordinance, Crime as construed the without reference to the content of the ” Supreme speech.’ (quoting Playtime Minnesota Court. re- Renton v. The Court Id. Theaters, Inc., 41, 48, long-standing fighting vised its view of (1986) words, stating truly (quoting, that are not “cate- 89 L.Ed.2d 29 with em entirely'invisible Pharmacy gories speech phasis, Virginia Virginia of to the Con- Bd. v. held, Council, stitution” as some earlier cases and Consumer had Citizens 1817, 1830, they “may therefore be made the vehi- 96 S.Ct. 48 L.Ed.2d 346 [not] (1976))). cles for content The included under this ex discrimination unrelated to Court distinctively proscribable ception their conduct “inci content.” laws directed at that — R.A.V., at -, dentally” sweep up U.S. at 2543. a content-based subcate S.Ct. view, singling proscrip- gory proscribable speech.1 In the Court’s out for of a class of Fi- disagree majority's might by speaking sexually derogato- 1. I with the view be violated that section exception. gives ry fighting general 3631 falls under this R.A.V. words. Both of these are as treason, examples incidentally speech, a law burden therefore which would be laws that by telling enemy meriting permissive violated the under the more the nation’s defense treatment O'Brien, secrets, prohibition and Title VII’s of sexual dis- test of United States v. 391 U.S. (1968). employment practices, crimination in which S.Ct. Section (White, J., concurring —, excep a “catch-all” offered nally, the Court (“This regulation may selective judgment) be for distinction in the bases other that tion non-neutral, “there is that harms long City’s judgment ás so the valid, if reflects even suppres creed, race, color, gen that official possibility religion, no realistic based on at -, 112 S.Ct. Id. afoot.” than pressing public of ideas is concerns sion more der are at 2547. by fighting words. caused other the harms painful long and our Nation’s light 3631 In of analysis, section R.A.V. Under discrimination, this determi Paul’s Bias- experience functionally similar St. seems at -, reasonable.”); ordi- Like the id. plainly Ordinance. nation is Crime Motivated (Blackmun, J., a subclass concur nance, 3631 selects section at 112 S.Ct. class of larger proscribable judgment).2 from ring threats in the basis of on the apparently all threats raised arguments be The same could they express conveyed message —because However, relation section and whites that blacks the idea hostility to rejected the majority specifically R.A.V. may It be housing together. should share fighting words that subclass of claim un- uphold section possible,-however, on that incite regulated by Paul —words St. excep- three limited R.AV.’s first of der the creed, race, color, religion, or the basis proscribable are threats The reason tions. ' singled because of be out gender they arouse —could fear that is the place the first The Court special injury some eause. fear, might frame listeners; which one that say “word-play” it was maintained that may as injury,” be “psychological as a offered targeted particular harms that the ordinance this subclass regulating a reason than the con- by speech, rather caused suppression unrelated to the threats .that makes the speech itself. “What tent of the concurrences, several their speech. dishonor, fear, produced etc. anger, sense ordinance the St. Paul argued that Justices distinct from by of this ordinance violation precisely on constitutional judged be should dishonor, fear, pro- etc. anger, sense of majority’s ex- Borrowing the reasoning. nothing fighting by words argued: duced other Stevens ample, Justice by a it is caused than the fact that other may determine Congress Just idea, by conveyed a distinctive distinctive more President entail against the threats Amendment cannot- be threats, message. First so than other consequences severe R.A.V., at easily.” U.S. evaded that may City Council determine Paul’s St. , major race, If at 2548. target’s religion, R.A.V. on the threats based — fighting words— ity rejected idea that harm to both more severe gender cause very inflict “by than other target society and to words that utterance Hampshire, judgment injury,” Chaplinsky latter v. New This threats. —that racial, gen- 766, 769, and by religious, 86 L.Ed. harms caused 62 S.Ct. qualitatively (1942) along are differ- subcategorized der-based invective — could fighting by other caused greater ent from that harm light- of the these lines in eminently words, reasonable words —seems fighting or sexist caused racist realistic. unlikely-to a similar uphold then it would be among that cre- (Stevens, J., threats —words classification at -, Id. theory that a fear of violence—on judgment); see also id. ate concurring in the decision, hand, analysis penetrating R.A.V. regulates In a threats direct the other on opin- argues Amar all of Professor Akhil merely broader ly, as an instance some ions, concurring, have been majority would "discrimination.” practice "treason” or such as by of the Thirteenth enriched how consideration Jesus, Community Inc. v. Jewish Jews Cf. on the St. Amendments bear and Fourteenth York, Inc., New Relations Council of point might One underscore Paul ordinance. Cir.1992) (applying uphold (2d R.A.V. passages the concur- from in connеction with e laws that antidiscrimination stat and federal Amar, The See Akhil rences cited above. Reed efforts, by some via defendants’ were violated Court, Supreme The Case 1991 Term — Comment: facility breach its con speech, a resort to make City Missing of St. R.A.V. Amendments: organization). plaintiff tract with the Paul, 106 Harv.L.Rev. targeted against pose threats individuals who of the statute is not to ban communica- housing minority message. tion of that share with members greater groups cause fear or more severe Although may this distinction seem illuso- disruption. ry, it dovetails a by distinction drawn majority the R.A.V. itself. question the crucial is whether the Since here, What we have it empha- must be regulates speech statute because of its con- sized, prohibition is not a fighting words however, message, impor- tent or there is an persons that are directed at or certain dissimilarity in the tant structure of these (which groups facially would be valid if it language in two laws. The critical the St. requirements Equal met the Protec- statute, by Paul unaffected the Minnesota Clause); rather, prohibition tion but Supreme gloss, speech pro- Court’s is that is (as fighting words that contain the Minne- provokes or scribed that insults violence “on Supreme repeatedly sota empha- Court race, color, creed, religion, the basis of or sized) messages of “bias-motivated” hatred gender.” Banning speech. because of the particular, case, in applied to this type engendеr it in of reaction would messages “based on virulent notions of listener, reasoned, majority necessarily supremacy.” racial [In re Welfare of requires an examination of the content of R.A.V.,] [507], 508, 464 N.W.2d speech. attempted that The ordinance thus (Minn.1991) [ ]. messages to control which could be communi- R.A.V., -, U.S. at at fighting cated via words. The “on the basis (emphasis original). passage in This indi language by compels of’ itself an examina- legislature may cates that a group select a tion of content. protect specially fighting from the harm of (or, extension, threats), by words hand, pass Section on the other’ forbids legislation prohibits individuals from us threats directed at an individual “because he ing speech against those forms of An them. ... person is or» order to intimidate such equivalent way to write such a law would be participating from” housing the exercise of perpetrator, to focus on the rather than the rights without discrimination. Section 3631 itself, speech and to consider whether he focuses neither on the content the threat chose his belong victims because likely nor on the effect that it to cause protected group.3 listener, but rather on the choice of vic- person making tim or on the motive of the argued majority Justice that the Stevens Indeed, precise message difference, the threat. of had drawn a distinction without why legislature the threat does not determine whether sec- since the reasоn would selectively proscribe tion 3631 has been speech violated. There is no aimed certain (“for persons groups example, need to consider whether the victim is or pro a law scribing threatened with a elderly”) violent act or some unde- threats would else”); (e.g., fined harm “Do by what we want be its determination that the harm caused regulated whether the threat is unconditional or is expression differed from that (“the promised by unregulated expression to occur “unless” the victim takes caused other action; injured particular elderly severely some or whether idea are some more threats (e.g., justification nonelderly”) that blacks and whites should not live than are the —a together) expressed thereby. may majority turn had declared invalid be It out, course, wording message that the of a written cause it was based on the behind at -, helps threat to determine whether the threat words. See id. (Stevens, J., participa!-(cid:127) judgment).

was made concurring because the victim was in the activities, protected pur- but the There are other reasons to whether it doubt - Term, Mitchell, orientation, past origin ancestry” 3. This in Wisconsin v. al national -, person. argument The Court rebuffed the . (1993), Supreme bigoted thought upheld punishes Court a Wisconsin that the statute It did note, however, penalty statute that enhances the for an offense if that the Wisconsin law aims at that, intentionally namely, speech, the offender selectеd his victim "be- unlike violence— conduct— race, color, religion, disability, protection. cause of the sexu- receives no First Amendment prohibit speech that is possible to would be America, groups” with- STATES of persons or UNITED at certain “directed Plaintiff-Appellee, discrimination. resorting content out certain threats directed at Fighting words conceptualized may be groups persons or plan kill “I worded ways. STEVENSON, A threat two Defendant- Stevie elderly person would an mailed to

you” and Appellant. against the prohibition on threats under a fall 91-3431. No. (to example) elderly Justice Stevens’ borrow the content of any recourse to without Appeals, Court of United States hand, poster the other itself. On threat Circuit. Seventh that con- front door nailed onto someone’s elderly against threatening diatribe tained a Argued April community living in would violate people Oct. Decided content, the idea it only light of its the law course, point, express. The trying to groups tar- persons or the choice of is that threat, explicitly stated by a whether

geted merely implied from the

in the threat or circumstances, is an essential

surrounding message that the threat

component of the

means to communicate. may similarly question whether there

One difference between any constitutional directed those

prohibition on threats minority groups in

who entertain members prohibition on threats

their homes and a of’ someone’s exer-

cause fear “on the basis housing rights without discrimination.

cise of ought constitutionality a law not de- seem, which of two func-

pend, it would on ways

tionally equivalent it is written.

case, per- 3631 draws I conclude that ‍​​‌​‌‌‌​‌​‌‌​​​​​​‌​‌​​​​‌​​​‌‌​​‌‌​‌‌​‌​​​​‌‌‌‌‍section proscribable the class of

missible lines within ruling hope I that the court’s

threats. While White’s does not bear out Justice this case surely confuse the low-

fear that R.A.V. “will -, courts,”

er id.

(White, J., judgment), I concurring in the it reaches is sound the result

believe and under traditional

under that decision principles.

First Amendment

Case Details

Case Name: United States v. Kenneth T. Hayward, and William B. Krause, Jr.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 5, 1993

Citation: 6 F.3d 1241

Docket Number: 91-3253, 91-3568

Court Abbreviation: 7th Cir.