U.S. v. Hayward

• Decision Date: 05 October 1993
• Docket Number: 91-3568,Nos. 91-3253,s. 91-3253
• Citation: 6 F.3d 1241
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth T. HAYWARD, and William B. Krause, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1241

6 F.3d 1241

62 USLW 2255

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth T. HAYWARD, and William B. Krause, Jr., Defendants-Appellants.

Nos. 91-3253, 91-3568.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 8, 1993.

Decided Oct. 5, 1993.

James A. Shapiro, Asst. U.S. Atty. (argued), Barry R. Elden, Asst. U.S. Atty., Chicago, IL, for U.S.

George P. Lynch, Downers Grove, IL (argued), for Kenneth T. Hayward.

M. Jacqueline Walther (argued), Kielian & Walther, Leland Shalgos (argued), Chicago, IL, for William B. Krause, Jr.

Before FLAUM and MANION, Circuit Judges, and MILLER, JR., District Judge. ^*

MANION, Circuit Judge.

The United States of America ("government") charged Kenneth T. Hayward and William B. Krause ("defendants") with various crimes associated with the burning of two crosses on the property of a white family who had entertained black people in their home. The defendants were tried and convicted. On appeal, they challenge the district court's application of 18 U.S.C. Sec. 844(h)(1) (use of fire or an explosive to commit a felony) and 42 U.S.C. Sec. 3631(b) (interference with housing rights by force or threat of force) to this case. They also challenge the court's limitation of their cross-examination of certain witnesses and the court's denial of their motion to dismiss the indictment on the basis of prosecutorial misconduct. We affirm the district court in all respects.

I. Background

The events of this case occurred over the 1989 Labor Day weekend in Keeneyville, Illinois, a semirural, apparently close-knit and all-white community west of Chicago. Bob and Mary Jones, a white couple, rented a house in Keeneyville that they shared with their daughter, Pam, and son-in-law, Jad Rayan, both of whom are white. The Rayans had black friends who occasionally visited the house. Some of those friends visited the Rayans over the Labor Day weekend. During that holiday visit, the defendants burned crosses in front of the Joneses' house to underscore their dislike of blacks--or as they referred to them, "niggers" and "coons"--being in Keeneyville and staying with a white family.

Two crosses were burned that weekend. Krause, without Hayward (although Hayward knew about it) burned the first cross with the assistance of Thomas Miller and Steven Randall. ¹ Early Sunday afternoon, Krause made the cross out of two pieces of two-by-four inch lumber, and Miller covered it with a flammable mixture he had made out of gasoline and petroleum jelly. The cross stood six and one-half feet high and was four and one-half feet wide. About 8:00 that evening, Krause, Miller, and Randall (all of whom had been drinking) carried the cross and a cement cinder block to the Joneses' house. They placed the cinder block at the edge of the Joneses' driveway and inserted the cross into the block. Krause attempted to light the cross, but could not because the gasoline had evaporated. He then ran back to the Randall house, where he was staying, got some gasoline, and returned. The men moved the cross a few feet up the driveway and doused it with the gasoline. Krause set the cross on fire and the men fled. A neighbor saw the burning cross and kicked it down.

Afterwards at the Randall house, Miller heard the sounds of a power saw and hammering coming from the direction of Hayward's house. Hayward, who was drunk, later arrived at the Randall house in his pickup truck. In the bed of the truck was a cross, larger than the first, approximately seven feet high, five feet wide, and built with two-by-six inch pieces of lumber. Hayward, Miller, and Krause removed the cross from the truck and drove to a nearby gasoline station to purchase diesel fuel to pour on the cross. Around midnight that same evening, the three men loaded the diesel-fuel soaked cross into the truck and drove to the Joneses' house, where they placed the cross into the same cinder block that held the first cross. Hayward lighted the cross, and the three men got into the truck and sped away. ² While the cross burned in the driveway, a neighbor woke Pam Rayan. Rayan and her children saw the cross and were frightened. The neighbor telephoned the fire department because the burning cross threatened to set fire to a nearby tree. The police were also called.

The police investigation into who had burned the crosses made little progress. Most of those who knew about the crime, or were involved in it, were either related or good friends and refused to inculpate the defendants or themselves for that matter. A break occurred for the police more than a year later when Lynn Bardeleben, Krause's girlfriend, had an argument with Krause and subsequently told the police what she knew about the cross burnings. During the argument, Krause, who was drunk, hit Bardeleben and placed his .357 magnum handgun to her head. Unbeknownst to Bardeleben, the gun was unloaded. Krause pulled the trigger six times. He then cautioned her that she would be dead if she told the Federal Bureau of Investigation ("FBI") what she knew about the cross burnings. Bardeleben drove away from the apartment, but Krause followed her. When she arrived at a nearby police station, Krause blocked her egress from her car. Bardeleben began honking her car horn and Krause drove off.

Thereafter, the investigation into the cross burnings brought positive results for the government. An indictment was filed against the defendants, charging them each with conspiracy against civil rights, 18 U.S.C. Sec. 241, use of fire to commit a federal felony, 18 U.S.C. Sec. 844(h)(1), interference with housing rights by force or threat of force, 42 U.S.C. Sec. 3631(b), aiding and abetting, 18 U.S.C. Sec. 2, and use of a firearm to commit a violent crime, 18 U.S.C. Sec. 924(c)(1). In addition, Krause was charged with threatening a witness (Bardeleben) in violation of 18 U.S.C. Sec. 1512(b)(1). After a nine-day jury trial, Krause was convicted as charged. Hayward was convicted on all counts, except for the firearm charge. The defendants moved the district court for a judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. They also moved the court to dismiss the indictment on the ground of prosecutorial misconduct. The court denied their motions. The court sentenced Krause and Hayward respectively to 153 months and 78 months in prison. This timely appeal followed.

II. Analysis

The defendants raise four points on appeal. First, whether the district court misapplied to this cross burning case 18 U.S.C. Sec. 844(h)(1), which punishes the use of fire or an explosive to commit any federal felony. Second, whether the district court's application of 42 U.S.C. Sec. 3631(b) to this case violated the defendants' First Amendment right to burn the crosses as a matter of free speech. Third, whether the district court abused its discretion in limiting the defendants' cross-examination of certain witnesses. Fourth, whether the district court erred in denying the defendants' post-trial motion to dismiss the indictment on the basis of prosecutorial misconduct.

A. 18 U.S.C. Sec. 844(h)(1)

In their first point on appeal, the defendants contend the district court erred in applying 18 U.S.C. Sec. 844(h)(1) to this cross burning case. Section 844(h)(1) states: "Whoever ... uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States ... shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for five years [to run consecutively to the punishment received for the predicate felony]." 18 U.S.C. Sec. 844(h)(1) (emphasis added). In this case, the predicate felony was 18 U.S.C. Sec. 241, conspiracy to violate another's civil rights. ³

The defendants maintain that section 844(h)(1) does not apply to this case because Congress intended the statute only for the prosecution of arson cases. Although the defendants acknowledge that the plain wording of the statute could apply here, they insist that we should construe the language to give effect to the intent of Congress. To accomplish this bypass of the plain meaning of the statute, the defendants urge us to look solely at the legislative history, which they claim focuses only on arson-type offenses. ⁴ We decline, however, to invert the process of statutory analysis, and we instead look to the wording of the statute itself to discern Congress's purpose in promulgating section 844(h)(1).

A court's starting point to determine the intent of Congress is the language of the statute itself, Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir.1990), because the best method of discerning congressional intent is to examine the words Congress used in the statute. SeeMeredith v. Bowen, 833 F.2d 650, 654 (7th Cir.1987). "Where a word or a phrase has not been otherwise defined in a statute [as is the case in section 844(h)(1) with the word "fire"], a court should give it its plain and ordinary meaning." Bailey v. City of Lawrence, 972 F.2d 1447, 1451 (7th Cir.1992).

A court looks past "the express language of a statute only where that statutory language is ambiguous or where a literal interpretation would lead to an absurd result or thwart the purpose of the overall statutory scheme." United States v. 916 Douglas Ave., 903 F.2d 490, 492 (7th Cir.1990), cert. denied, 498 U.S. 1126, 111 S.Ct. 1090, 112 L.Ed.2d 1194 (1991). In contrast, when the language of a statute is clear and unambiguous, no need exists for the court to examine the legislative history, and the court must give effect to the plain meaning of the statute. E.g.,Bethlehem Steel Corp., 918 F.2d at 1326; NuPulse, Inc. v. Schlueter Co., 853 F.2d 545, 548 (7th Cir.1988); Meredith, 833 F.2d at 654. Along with looking at the language of the statute section in question, part of a court's analysis includes examining the language and design of the statute as a whole. E.g.,K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108...