935 F.2d 952 (8th Cir. 1991), 90-5264, United States v. Lee

Docket Nº:90-5264.
Citation:935 F.2d 952
Party Name:UNITED STATES of America, Appellee, v. Bruce Roy LEE, Appellant.
Case Date:June 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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935 F.2d 952 (8th Cir. 1991)

UNITED STATES of America, Appellee,

v.

Bruce Roy LEE, Appellant.

No. 90-5264.

United States Court of Appeals, Eighth Circuit

June 10, 1991

        Submitted Nov. 15, 1990.

        Rehearing and Rehearing En Banc

        Granted as to Count I; Opinion

        and Judgment Vacated as to Count I

        Aug. 14, 1991.

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        John W. Lundquist, Minneapolis, Minn., for appellant.

        Robert A. Brunig, Minneapolis, Minn., for amicus curiae Minnesota Civil Liberties Union.

        Linda F. Thome, Washington, D.C., for appellee.

        Before ARNOLD and MAGILL, Circuit Judges and BENSON, [*] Senior District Judge.

        BENSON, Senior District Judge.

        Bruce Roy Lee constructed and burned a cross adjacent to an apartment complex in which a number of black families resided. He was charged with conspiracy against civil rights in violation of 18 U.S.C. Sec. 241 (count I), interference with housing rights by means of force or threat of force in violation of 42 U.S.C. Sec. 3631(a) (count II), and the use of fire in the commission of a felony in violation of 18 U.S.C. Sec. 844(h)(1) (count III). Upon a jury verdict, 1 Lee was convicted on counts I and III and acquitted on count II. 2 He appeals his convictions.

        On appeal, Lee challenges the validity of 18 U.S.C. Sec. 241 on first amendment grounds. He also challenges the trial court's instructions, the sufficiency of the evidence, the prosecutor's closing argument, and the applicability of 18 U.S.C. Sec. 844(h)(1). We affirm as to Count I and reverse as to Count III.

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FACTS

        On August 11, 1989, Bruce Roy Lee was visiting his girlfriend, Debbie Dockter, in Coon Rapids, Minnesota. Dockter resided 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 which had been occurring among children in the complex. Several assaults had occurred. The group also discussed the likelihood that the Joneses, a black family who lived 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 were 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.

        The burning cross was seen by Pearl Jones and her family and friends from the Joneses' 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." Tr. at 189. Upon seeing the cross, she said "I hope they don't come up here and burn us up." Tr. at 191. She felt the cross burning was directed at her.

        Lee later stated to another tenant that he had taken part in the cross burning and that he knew cross burning was a symbol of the Klan. 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." Tr. at 288.

        DISCUSSION

The First Amendment

        Title 18, section 241 of the United States Code provides in part that it is a crime to "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...." Lee contends that this statute, as applied to him, violates the first amendment because it punishes the expressive act of cross burning. Lee also contends the statute is overbroad and vague.

        We proceed on a predicate that cross burning is conduct which possesses sufficient elements of communication to implicate the first amendment. However, it does not necessarily follow that the burning of this cross was protected first amendment activity. United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). The relevant inquiry is whether the governmental interest in regulation is related to the suppression of free expression. Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 2538, 105 L.Ed.2d 342 (1989). If the interest is related to the suppression of expression, we must apply a heightened standard of review. Id. If the interest is unrelated to the suppression of expression, the more deferential O'Brien standard will apply. Id.

        We hold that the governmental interest supporting this regulation is unrelated to the suppression of free expression. Section

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241 does not prohibit conspiracies to communicate offensive or racist messages; it does not prohibit conspiracies to simply burn a cross. Section 241 is a content neutral statute which prohibits conspiracies to threaten or intimidate others in the exercise or enjoyment of their federally guaranteed rights. As applied to the facts before us, section 241 does not prohibit Lee from conspiring to burn a cross to convey an offensive message or a message of racial hatred. Rather, the statute prohibits Lee from conspiring to burn a cross to threaten or intimidate targeted individuals in the exercise of their federally guaranteed right to rent and occupy a dwelling. See CISPES (Committee in Solidarity with the People of El Salvador) v. Federal Bureau of Investigation, 770 F.2d 468, 474 (5th Cir.1985). 3

        Having concluded that the governmental interest in protecting the free exercise of federally guaranteed rights is unrelated to the suppression of free expression, we next determine whether the statute 1) is within the constitutional power of the government; 2) furthers an important or substantial governmental interest; and 3) has no greater restriction on first amendment freedom than is essential to further the underlying interest. O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

        Section 241 is intended to protect the free exercise of all rights and privileges secured by the Constitution and by all laws of the United States. United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). To the extent that the enactment of section 241 is an exercise of the power of Congress to enforce the thirteenth amendment by and through legislation, we hold that it is valid. See U.S. Const. amend. XIII, Sec. 2; cf. Williams v. Matthews Co., 499 F.2d 819, 825 (8th Cir.1974) (Fair Housing Act of 1968 is also an exercise of Congress' power under the thirteenth amendment).

        We further hold that the enactment of section 241 furthers an important and substantial governmental interest in protecting federally guaranteed rights--specifically, the right to be free from racial discrimination in housing.

        Finally, we hold that the incidental restriction on first amendment freedom is no greater than that which is essential to further the governmental interest. Section 241 is a narrowly tailored law which targets and eliminates the exact source of "evil" it seeks to remedy by requiring a strict scienter requirement. Cf. Boos v. Barry, 485 U.S. 312, 326, 108 S.Ct. 1157, 1166, 99 L.Ed.2d 333 (1988) (18 U.S.C. Sec. 112 "does not prohibit picketing; it only prohibits activity undertaken to 'intimidate, coerce, threaten, or harass.' "). The statute is violated only if it is proved beyond a reasonable doubt that the defendant possessed the specific intent to threaten or intimidate another in the exercise or enjoyment of a federally guaranteed right. See United States v. Guest, 383 U.S. 745, 753-54, 86 S.Ct. 1170, 1175-76, 16 L.Ed.2d 239 (1966). In Guest, the Supreme Court held that Sec. 241 requires the offender act with a specific intent to interfere with a federal right. Id. If the specific intent is absent, the statute does not restrict first amendment freedom.

        Lee contends the statute is overbroad. We disagree. Section 241, which prohibits threats or intimidation which abridge the free exercise or enjoyment of federally guaranteed rights, does not reach a substantial amount of constitutionally protected conduct. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

        Intimidation by threats of physical violence is not protected by the first

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amendment. See, e.g., Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (true threats...

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