USA v. Whitney

• Citation: 229 F.3d 1296
• Decision Date: 11 October 2000
• Docket Number: No. 99-3285,99-3285
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA , Plaintiff-Appellee , v. JAMES WHITNEY , Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1296

229 F.3d 1296 (10th Cir. 2000)

UNITED STATES OF AMERICA , Plaintiff-Appellee , v. JAMES WHITNEY , Defendant-Appellant .

No. 99-3285

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

October 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 99-20010-01 )

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Jenine Jensen, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant .

Lisa J. Stark, Department of Justice (Bill Lann Lee, Acting Assistant Attorney General, Jessica Dunsay Silver, with her on the brief ), Washington, D.C., for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, HENRY, and MURPHY, Circuit Judges.

HENRY, Circuit Judge.

James Whitney was convicted of interfering with federal housing rights on the basis of race, in violation of 42 U.S.C. § 3631(a), and conspiracy to interfere with those federal rights, in violation of 18 U.S.C. § 241. On appeal, Mr. Whitney argues: (1) the evidence was insufficient to sustain both convictions; (2) the district court committed plain error by allowing the co-defendants and one co-defendant's wife to testify that the co-defendants had pleaded guilty to the conspiracy charge and (3) the court committed plain error by increasing his criminal history level by one point for a prior conviction of "Minor In Possession." For the reasons set forth below, we affirm Mr. Whitney's convictions and sentence.

1. BACKGROUND

In July 1998, Mr. Whitney and three or four others gathered at the home of Mr. Whitney's brother, Anthony. An African-American teenager, Kenneth Green, passed by on the sidewalk, and the men began yelling racial epithets at him. Mr. Green returned a few hours later and knocked on the door to Anthony's house. Mr. Whitney answered the door, and Mr. Green punched him in the face, leaving him with a black eye.

A week later, Mr. Whitney, Anthony, Raymond Roland, and Paul Geiger were gathered at Anthony's house. The men were drinking heavily and discussing the prior incident with Mr. Green. Mr. Green lived in the neighborhood, just down the street from Anthony with an African-American family named the Madkins. At some point during this gathering, the idea arose to burn a cross in the Madkins' yard.

Following the discussion, Anthony, Mr. Roland, and Mr. Geiger proceeded to Anthony's garage and nailed two boards together to form a cross. Mr. Whitney passed in and out of the garage but did not aid in building the cross. Anthony and Mr. Roland then carried the cross down the street toward the Madkins' home. However, there were people outside, so they left the cross in an alley and returned to Anthony's home.

Next, all four men decided to drive to the fairgrounds to watch a demolition derby. Shortly after they arrived, they changed their minds, bought more alcohol, and drove back to Anthony's house. When they arrived back at Anthony's, Mr. Whitney stayed in the house while Anthony, Mr. Roland, and Mr. Geiger retrieved the cross and a gas can. Mr. Geiger watched as Mr. Roland and Anthony stuck the cross in the Madkins' front yard and lit it on fire. The men ran back to the house and informed Mr. Whitney they had burned the cross in the Madkins' yard. Mr. Roland described Mr. Whitney's reaction as, "Just, okay. Cool, it's done." Supp. Rec. vol 1 at 75.

Later, Mr. Whitney told investigators he was not aware of the cross burning until the following day, when his landlady informed him. However, eventually, Mr. Roland, at the urging of his wife, confessed to the Kansas City Fire Department and gave a statement regarding everything he knew about the incident. The statement implicated all four men. The government charged Mr. Roland, Mr. Whitney, and Anthony Whitney in a two-count indictment with violating 42 U.S.C. § 3631(a), interference with housing rights on the basis of race, and 18 U.S.C. § 241, conspiracy to interfere with federal rights. Mr. Roland and Anthony entered into plea agreements.

Mr. Whitney went to trial, and Mr. Roland and Anthony testified on behalf of the government pursuant to their plea agreements. A jury convicted Mr. Whitney on both counts. The district court sentenced him to twenty-one month terms of imprisonment on each count to run concurrently.

II .DISCUSSION

A. Sufficiency of the Evidence

Mr. Whitney asserts the evidence presented at trial was insufficient to sustain his convictions on both counts. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and inquiring whether any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. See United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000). The defendant's hurdle after a jury verdict is high: "[w]e will not overturn a jury's finding unless no reasonable juror could have reached the disputed verdict." United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997).

1. Conviction under 18 U.S.C. § 241.

Section 241 of the Civil Rights Act of 1866 and 1870 states:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . . .

They shall be fined under this title or imprisoned not more than ten years, or both; . . .

18 U.S.C. § 241 (1999).

To obtain a conviction for conspiracy under § 241, the government must prove that the defendant (1) knowingly agreed with another, (2) to injure a person in the exercise of any right guaranteed under the laws of the United States. See United States v. Epley, 52 F.3d 571, 575-76 (6th Cir. 1995); United States v. Reese, 2 F.3d 870, 880 (9th Cir. 1993). The right at issue in this case is set forth in 42 U.S.C. § 3631(a): the right to housing free from intimidation or interference on the basis of race.

Section 241 does not require proof of an overt act in furtherance of the conspiracy. See United States v. Crochiere, 129 F.3d 233, 237-38 (1st Cir. 1997) (stating that "[t]he Supreme Court case of United States v. Shabani, 513 U.S. 10 (1994) . . . requires a holding that § 241 contains no overt act requirement") ; see also United States v. Skillman, 922 F.2d 1370, 1375 (9th Cir. 1991) (stating that § 241 does not require proof of an overt act in furtherance of the conspiracy); United States v. Morado, 454 F.2d 167, 169 (5th Cir.1972); cf.Shabani, 513 U.S. at 14-15 (noting, in its holding that the federal drug conspiracy statute, 21 U.S.C. § 846, does not require an overt act, that the language of the statute does not require an overt act, and that the Court has not inferred such a requirement from congressional silence in other conspiracy statutes).

Here, Mr. Whitney does not challenge the existence of a conspiracy to interfere with the Madkins' exercise of federal rights by burning a cross in their front yard. See Aplt's Br. at 17 (conceding "the government proved that Raymond Roland and Anthony Whitney conspired to threaten the victims"). Rather, Mr. Whitney solely contends the government failed to "prove that he became a member of that conspiracy." Id.

The government need not offer direct proof of an express agreement on the part of the defendant. See United States v. Bell, 154 F.3d 1205, 1208 (10th Cir. 1998). Instead, the agreement may be informal and may be inferred entirely from circumstantial evidence. See id. "[T]he defendant's participation in, or connection to, the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt." United States v. Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990) (citation and quotations omitted). Moreover, an agreement may be inferred from a variety of circumstances, such as, "sharing a common motive, presence in a situation where one could assume participants would not allow bystanders, repeated acts, mutual knowledge with joint action, and the giving out of misinformation to cover up [the illegal activity]." United States v. Davis, 810 F.2d 474, 477 (5th Cir. 1987) (citations omitted); see also United States v. Piche, 981 F.2d 706, 717 (4th Cir. 1992); United States v. Ellis, 595 F.2d 154, 160 (3d Cir. 1979).

Viewing the record in the light most favorable to the government, as we are required to do after a jury verdict, there was sufficient evidence to support the finding that Mr. Whitney agreed to burn the cross in the Madkins' yard. On the afternoon of the cross burning, Anthony, Mr. Roland and Mr. Geiger were gathered at Anthony's house. The men did not begin discussing Mr. Whitney's altercation with Mr. Green or the idea of burning a cross until after Mr. Whitney arrived. Referring to the encounter with Mr. Green, Mr. Whitney agreed with Mr. Roland's statement that, "[t]hat was a fucked up deal. He shouldn't have got away with that." Supp. Rec. vol. I at 74. Mr. Whitney added, "Yeah, it's pretty fucked-up. I don't know why he did it." Id. Mr. Whitney also referred to the Madkins as "niggers." Id. vol. II at 141-42; cf. United States v. Pospisil, 186 F.3d 1023, 1028-29 (8th Cir. 1999) (holding evidence sufficient to support conviction of conspiracy to violate federal rights in violation of § 241 where the defendants involved in cross burning made racially derogatory statements), cert. denied, 120 S. Ct. 1724 (2000).

Further, evidence was presented that showed that not only did Mr. Whitney know about, discuss, and encourage the action, but that he initiated it. Anthony Whitney testified that he told the FBI that it was Mr. Whitney's idea initially to burn the cross. Supp. Rec. vol. II at 145, 186. Moreover, Mr. Roland testified that, although there was no verbal agreement, there was a "mutual understanding" of what they were going to do and that everyone "pretty much" agreed to go burn...