6 F.3d 1297 (8th Cir. 1993), 90-5264, United States v. Lee

Docket Nº:90-5264.
Citation:6 F.3d 1297
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bruce Roy LEE, Defendant-Appellant.
Case Date:October 07, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1297

6 F.3d 1297 (8th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bruce Roy LEE, Defendant-Appellant.

No. 90-5264.

United States Court of Appeals, Eighth Circuit

October 7, 1993

Submitted Oct. 15, 1992.

John W. Lundquist, Minneapolis, MN, argued, for appellant.

David K. Flynn, Dept. of Justice, Washington, DC, argued (Linda F. Thome, Dept. of Justice, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

We reverse the conviction for conspiracy under 18 U.S.C. Sec. 241 (1988), because of errors in the instructions that were given. We remand for retrial under instructions to be given in accordance with the concurring opinion of Judge John R. Gibson, in which Chief Judge Arnold and Judges Bowman, Wollman, and Hansen concur. Judges Lay, Loken, and Morris S. Arnold concur in the result and judgment of the court for the reasons explained in Judge Lay's concurring and dissenting opinion.

JOHN R. GIBSON, Circuit Judge, concurring, with whom Chief Judge RICHARD S. ARNOLD, Judges BOWMAN, WOLLMAN, and HANSEN, concur.

Bruce Roy Lee was convicted of conspiracy against civil rights in violation of 18 U.S.C. Sec. 241 (1988), after he constructed and burned a cross on a hill near an apartment complex in which a number of black families resided. A panel of this court rejected Lee's argument that the First Amendment was a bar to conviction under section 241, and affirmed his conviction on that count. United States v. Lee, 935 F.2d 952 (8th Cir.1991). We granted rehearing en banc, and now reverse Lee's conviction for conspiring under 18 U.S.C. Sec. 241.

Since our panel heard this case, the United States Supreme Court has decided two First Amendment cases involving hate-crime statutes. In R.A.V. v. City of St. Paul, Minnesota, --- U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), the Supreme Court reversed

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a conviction for burning a cross on a black family's lawn in violation of the St. Paul Bias Motivated Crime Ordinance. The Supreme Court held that cross burning was non-verbal expressive activity protected by the First Amendment, and that the St. Paul Ordinance specifically barring the cross burning was facially unconstitutional. Id. at ----, 112 S.Ct. at 2547. In Wisconsin v. Mitchell, --- U.S. ----, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), the Court held that a defendant's First Amendment rights were not violated by the application of a sentencing enhancement statute for crimes in which the defendant intentionally selects his victim based on "race, religion, color, disability, sexual orientation, national origin or ancestry of that person...." Id. at ---- n. 1, 113 S.Ct. at 2197 & n. 1.

We first state the facts essentially as they appear in the panel's opinion. Lee, 935 F.2d at 954. On August 11, 1989, Bruce Roy Lee was visiting his girlfriend, Debbie Dockter, in Coon Rapids, Minnesota. Dockter lived at the Tamarack Apartments, a three building complex in which approximately fifteen black families lived. The racial mix of the Tamarack Apartments' residents was approximately three quarters white and one quarter black.

On the morning of August 11, Lee joined Dockter and several other tenants, including Werner Jahr and his wife Cathy Jahr, at a picnic table outside the apartments. The group drank alcohol and discussed racial problems, including several assaults which had occurred among children in the complex. The group also discussed the likelihood that the Joneses, a black family living in an apartment above Dockter, would be evicted. It was rumored that Pearl Jones' son had assaulted a white child.

The drinking and discussion continued throughout the day. At approximately three o'clock, Werner Jahr mentioned that he had read an article about the Ku Klux Klan. He told Lee that if the Klan was there, there would be a cross burning. Jahr suggested they burn a cross and Lee agreed that it was a good idea. Lee then constructed a wooden cross. Later that afternoon, Lee told Dockter's sister that he intended to burn the cross because there were problems with the people upstairs and he was going to do something about it.

At approximately ten o'clock, Lee changed into dark clothes. There was testimony that Lee also donned a white mask. Lee then burned the cross on a small hill about 386 feet from the apartment buildings. Although the cross had been soaked with mineral spirits, it burned only briefly. Witnesses testified that Lee seemed disappointed that the cross had not burned longer.

Pearl Jones, her family, and her friends saw the burning cross from their balcony. Pearl Jones testified that she was afraid when she saw it because it made her think of the Ku Klux Klan--"peoples that hate blacks." Upon seeing the cross, she said, "I hope they don't come up here and burn us up." She felt the cross burning was directed at her.

Lee later admitted to another tenant that he had taken part in the cross burning and that he knew cross burning was a Klan symbol. He also said he had burned the cross to take a stand and that "[m]aybe that would get rid of some of the bad blacks that were there, they would take the message seriously and leave."

Lee was charged with violating 18 U.S.C. Sec. 241, which reads:

If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District 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....

The court instructed the jury on the nature of the charge and described the elements of the offense:

.. on August 11 two or more persons, including Bruce Lee, had an agreement or an understanding to threaten or intimidate one or more persons in the exercise of rights secured by the [C]onstitution or laws of the United States. This element of the offense, the agreement or the conspiracy, requires that the plan of the conspirators be to threaten or intimidate one or more inhabitants of the United States....

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[T]he words threaten or intimidate, are not used in any technical sense, but they cover a variety of conduct intended to harm, frighten, punish, or inhibit the free action of other persons.

To threaten or intimidate does not require a threat of physical force or the intimidation of physical fear.

. . . . .

In order to constitute a criminal conspiracy under Count I, the defendant's actions must have been taken with the specific intent to intimidate or interfere with the residents right to occupy a dwelling free of force or threats of force.

.. [Y]ou are advised that for this element of the offense you must find the defendant, if and when he formed or joined the conspiracy, did so with the intent that the victims be deprived of their rights to hold and occupy the apartments at the Tamarack address, free from threats or intimidation on account of race.

.. It is only necessary that the alleged conspirators had a purpose to threaten or intimidate others in the exercise of this right to occupy and lease property.

The jury acquitted Lee on Count II of the indictment which charged him with interfering with housing rights by means of force or threat of force in violation of 42 U.S.C. Sec. 3631(a) (1988). The jury convicted Lee on Count III of the indictment which charged him with the use of fire in the commission of a felony in violation of 18 U.S.C. Sec. 844(h)(1) (1988). The panel opinion reversed this conviction, reasoning that it was unclear whether Congress intended the statute to apply to Lee's conduct. 935 F.2d at 958. The government requested rehearing en banc with respect to the panel's reversal of the section 844(h)(1) conviction; we granted rehearing en banc only with respect to the section 241 conviction, and the panel opinion is the final disposition of the section 844(h)(1) issue. The jury convicted Lee of violating section 241 (Count I), and the sole issue before us is whether section 241, as applied, violates the First Amendment by punishing the expressive act of cross burning.

A fitting introduction to our discussion is Justice Scalia's statement in R.A.V.: "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible." --- U.S. at ----, 112 S.Ct. at 2550. R.A.V. supplies the predicate for our analysis; namely, that cross burning is symbolic expression protected by the First Amendment. --- U.S. at ----, 112 S.Ct. at 2547. R.A.V., however, does not aid our analysis beyond a number of general principles, as it deals with an ordinance that specifically proscribes cross burning.

Similarly, the Supreme Court's recent decision in Wisconsin v. Mitchell does not change our analysis. In that case, the state court applied a state penalty enhancement statute because the defendant intentionally selected his victim based on race. --- U.S. at ----, 113 S.Ct. at 2197. The Supreme Court first rejected the argument that the enhancement statute violated the First Amendment because it punished offensive thought. Id. at ---- - ----, 113 S.Ct. at 2198-2200. The Court reasoned that the statute, unlike the statute in R.A.V., was aimed at conduct (physical assault) unprotected by the First Amendment, and that motive has long been a proper sentencing consideration. Id. at ----, 113 S.Ct. at 2201. The Court also stated that the state's isolation of "bias-inspired" conduct for penalty enhancement was based on the perceived social harms of this conduct and was "over and above mere disagreement with [the] offenders' beliefs or biases." Id. The Court also...

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