883 F.2d 1484 (10th Cir. 1989), 87-2774, United States v. Lane

Docket Nº:87-2774, 87-2805.
Citation:883 F.2d 1484
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David LANE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce PIERCE, Defendant-Appellant.
Case Date:August 25, 1989
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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883 F.2d 1484 (10th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,


David LANE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Bruce PIERCE, Defendant-Appellant.

Nos. 87-2774, 87-2805.

United States Court of Appeals, Tenth Circuit

August 25, 1989

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Jeffrey S. Pagliuca, Holland, Seelen & Pagliuca, Denver, Colo., for defendant-appellant, David Lane.

Terri Harrington, Kane & Harrington, Denver, Colo., (Mary A. Kane of Kane & Harrington, Denver, Colo., on briefs), for defendant-appellant, Bruce Pierce.

William R. Yeomans, Atty., Dept. of Justice, Washington, D.C. and Thomas O'Rourke, Asst. U.S. Atty. (William Bradford Reynolds, Asst. Atty. Gen., Jessica Dunsay Silver, Atty., Dept. of Justice, Washington, D.C., and Michael J. Norton, U.S. Atty., Denver, Colo., with them on the briefs), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and SEYMOUR and BALDOCK, Circuit Judges.

HOLLOWAY, Chief Judge.


On the night of June 18, 1984, Alan Berg was shot and killed in front of his Denver, Colorado home. Mr. Berg was a radio talkshow host and he was Jewish. A federal grand jury indictment charged defendants Pierce and Lane, as well as one Scutari and one Craig, with violating 18 U.S.C. Secs. 245(b)(2)(C) and 2 in connection with Berg's death:

On or about June 18, 1984, in the State and District of Colorado, DAVID LANE, BRUCE PIERCE, RICHARD SCUTARI, and JEAN CRAIG, aiding and abetting each other, by force and threat of force, willfully injured and interfered with Alan Berg because of his race, religion and national origin, that is, because he was Jewish and because he was and had been enjoying employment, and the perquisites thereof, by a private employer, resulting in the death of Alan Berg by gunfire.

The foregoing was in violation of Title 18, United States Code, Sections 245(b)(2)(C) and 2.

The four defendants were tried jointly in the district court. The jury found Scutari and Craig not guilty; it found Pierce and Lane guilty. The trial judge sentenced Pierce and Lane to 150 years' imprisonment. Their appeals were companioned, and we now affirm their convictions.


A. Constitutionality of 18 U.S.C. Sec. 245(b)(2)(C)

Before trial, Lane and Pierce filed motions to dismiss the indictment. They each contended that Sec. 245(b)(2)(C) was unconstitutional as applied to them. The trial judge orally denied the motions. On appeal, Lane and Pierce contend that this ruling was erroneous and reassert their argument that Sec. 245(b)(2)(C) is unconstitutional as applied to them.

Lane and Pierce contend that Sec. 245(b)(2)(C) is unconstitutional as applied to them because it attempts to regulate their purely private conduct, but was enacted solely upon Congress' power under the Equal Protection Clause 1 and Sec. 5 2 of the Fourteenth Amendment empowering Congress to regulate only state action, and arguably private action interfering with use of a public facility, neither of which was involved here. They say the Commerce Clause, which the Government contends that Sec. 245(b)(2)(C) is based upon, cannot support the statute because there were no legislative findings regarding the effect on interstate commerce of racial discrimination.

The government responds that Sec. 245(b)(2)(C) was not based on Congress' power under the Fourteenth Amendment, but rather its power to regulate interstate commerce granted by the Commerce Clause. 3 The government contends that Sec. 245(b)(2)(C) was designed to deter and punish private people who interfere with civil rights created by prior legislation--specifically Title VII of the Civil Rights Act

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of 1964, 42 U.S.C. Sec. 2000e, et seq.--that had been enacted pursuant to Congress' power under the Commerce Clause. The government says that Congress made ample findings regarding the effect of racial discrimination on interstate commerce in connection with enactment of the Civil Rights Act of 1964, and that no further independent findings are needed to support Sec. 245(b)(2)(C).

Although the trial judge's oral ruling is not part of our record, his later comments show that his ruling upheld the government's position that Congress based Sec. 245(b)(2)(C) on the Commerce Clause. During his rulings on later motions for acquittal, the trial judge said he "thought that Title VII itself was founded on the Commerce Clause, and that [Sec. 245(b)(2)(C) ] was a subsequent statute to criminalize or to use the criminal sanctions to implement Title VII essentially." Supp. III R. 40.

  1. The History of the Act

    The history of Sec. 245 is complicated, but consideration of it is necessary to determine which constitutional powers Congress invoked when enacting the statute. The genesis of Sec. 245 is in section 2 of the Civil Rights Act of 1866. That section made it a federal misdemeanor for any person "under color of any law" to "subject or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act...." Act of 9 April 1866, ch. 31, 14 Stat. 27. The "right[s] secured or protected by this act" were extensive and were enumerated in section 1. 4

    Then in the First Enforcement Act of 1870, section 17, Congress re-enacted section 2 of the 1866 Act and also added a new section 6. Act of 31 May 1870, ch. 114, Secs. 6, 17, 18, 16 Stat. 140. New section 6 of the 1870 Act made it a federal felony for two or more persons to "band or conspire together, or go in disguise on the public highway, or go on the premises of another ... to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or the laws of the United States...." Act of 31 May 1870, Sec. 6. Section 6 of the 1870 Act did not require an act under color of law; it sanctioned purely private conduct.

    In 1909 Congress again amended and re-enacted sections 6 and 17 of the 1870 Act. Act of 4 March 1909, ch. 321, Secs. 19 and 20, 35 Stat. 1092. In the 1909 Act Congress made a significant amendment to section 17 of the 1870 Act (section 2 of the 1866 Act); the rights and privileges that the statute made it illegal to interfere with, under color of any law, were changed from those enumerated in the previous section of the statute (section 16 of the 1870 Act and section 1 of the 1866 Act) to "any rights, privileges or immunities secured or protected by the Constitution and laws of the United States." Act of 4 March 1909, Sec. 20.

    Thus by 1909 Congress had made it a federal crime for a person under color of any law to deprive any inhabitant of a state of any right, privilege, or immunity secured

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    or protected by the Constitution and laws of the United States, and for two or more persons by conspiracy, going in disguise on a public highway, or on the premises of another, to interfere with any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States. 18 U.S.C. Secs. 51, 52 (1940 ed.).

    By 1966 these statutes had been further amended several times and were codified at 18 U.S.C. Secs. 241 and 242. Although these statutes had been in force for one hundred years, the very general way in which they described the rights and privileges protected (any right or privilege secured or protected by the Constitution or laws of the United States), among other things, created enforcement problems. See S.Rep. No. 721, 90th Cong., 2nd Sess. 5 (1967) reprinted in 1968 U.S.Code Cong. & Ad.News 1837; 5 H.R.Rep. No. 473, 90th Cong., 2nd Sess. 4-5 (1967); 6 United States v. Guest, 383 U.S. 745, 785-786, 86 S.Ct. 1170, 1192-1193, 16 L.Ed.2d 239 (1966) (Brennan J., concurring). 7 Congress therefore set out to create a more specific statute and eventually enacted Sec. 245. 8

  2. 18 U.S.C. Sec. 245(b)(2)(C)

    Resolution of the parties' disagreement about the constitutional power that Congress invoked when it passed Sec. 245(b)(2)(C)--the Fourteenth Amendment

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    or the Commerce Clause--requires consideration of the complex structure of Sec. 245. The statute is divided into three subsections. Subsection (b) contains the substantive criminal provisions and is itself divided into five parts--(1) through (5). Parts (1) and (2) of subsection (b) are further divided into five and six subparts--(A) through (E) and (A) through (F)--respectively. Each of these subparts criminalizes interference with specific protected activities.

    The portion of Sec. 245 that Lane and Pierce were convicted of violating provides:

    (b) Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--

    (2) any person because of his race, color, religion or national origin and because he is or has been--

    (C) applying for or enjoying employment, or any perquisite thereof, by any private employer ...

    shall be fined not more than $1000, or imprisoned not more than one year, or both; and if bodily injury results shall be fined not more than $10,000, or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.

    This "employment" provision within Sec. 245(b)(2)(C) is the only portion of Sec. 245 under attack here.

  3. The Basis of Congressional Action

    The Senate and House Judiciary Committee Reports 9 accompanying Sec. 245 describe the statute's purpose and its constitutional foundation. In discussing the constitutionality of Sec. 245's "employment"...

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