U.S. v. McInnis

• Citation: 976 F.2d 1226
• Decision Date: 28 September 1992
• Docket Number: 91-50035,Nos. 90-50693,s. 90-50693
• Parties: 36 Fed. R. Evid. Serv. 1113 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Gary Dean McINNIS, Defendant-Appellant-Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1226

976 F.2d 1226

36 Fed. R. Evid. Serv. 1113

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Gary Dean McINNIS, Defendant-Appellant-Cross-Appellee.

Nos. 90-50693, 91-50035.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1992.

Decided Sept. 28, 1992.

Dennis J. Dimsye, Leslie A. Simon, U.S. Dept. of Justice, Washington, D.C., John R. Dunne, Asst. Atty. Gen., Paul L. Seave, Elana S. Artson, Asst. U.S. Attys., Santa Ana, Cal., for plaintiff-appellee-cross-appellant.

G. David Haigh, Brastman & Haigh, Santa Ana, Cal., for defendant-appellant-cross-appellee.

Appeal from the United States District Court for the Central District of California.

Before: BROWNING and FARRIS, Circuit Judges, and GEORGE, ^* Chief District Judge.

GEORGE, Chief District Judge:

Defendant-Appellant Gary Dean McInnis ("McInnis") was convicted by a jury for the use of force to interfere with housing rights on account of race in violation of 42 U.S.C. § 3631(a) (1988) (Count 1) and for the use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (1988) (Count 2). The district court sentenced McInnis to twenty-four (24) months imprisonment on Count One and sixty (60) months imprisonment on Count Two. On appeal McInnis challenges the sufficiency of the evidence to support his conviction and whether certain evidence was properly admitted at trial. On cross-appeal, the Government challenges the district court's application of the federal Sentencing Guidelines in calculating McInnis' sentence on the civil rights charge. We affirm the conviction and remand on the Government's cross-appeal.

I.

The evidence presented at trial showed the following: McInnis is a resident of Hesperia, California. His residence is located directly north of a residence occupied by the Kellers, an African-American family. The homes are about three-fourths of a mile apart, separated by a vacant lot. On the evening of January 26, 1990, McInnis fired two shots from an 8 mm. Mauser rifle through the Kellers' home. ¹ One of the bullets penetrated two walls of the house, and a portion of the bullet struck Olthea Keller in the stomach. Approximately three weeks later, she underwent surgery to have the bullet fragments removed.

On the day of the shooting, Raymond Dybsand visited McInnis at his home for the purpose of obtaining automobile parts. McInnis apparently had a workshop in his garage and was known as a good source for parts. Dybsand had been to McInnis' house six or eight times before for the same purpose. On some of those occasions, McInnis had commented to Dybsand that he did not care to be around "niggers." Dybsand spent approximately three to four hours with McInnis. During that time, he and McInnis drank beer, talked, and searched through boxes for auto parts. At some point in the conversation, McInnis stated that he did not care for "niggers." McInnis pointed to the south and told Dybsand that "niggers" lived there. Less than 15 minutes later, McInnis picked up a rifle and a box of ammunition, left the garage and turned toward the Kellers' house. Dybsand then heard two gunshots. Mark Gibson, the Keller's next-door neighbor to the south, also heard gunshots coming from the north of the Kellers' house. After the last shot, he heard a middle-aged man yell "All niggers must die!" from the direction of McInnis' house.

Senior Deputy Bart Belknap and Reserve Deputy David Foster of the San Bernardino County Sheriff's Department arrived at the Keller residence approximately four minutes after the shooting. As they approached, Deputy Foster, who was in the passenger seat, noticed McInnis standing in front of his house screaming. After the squad car pulled into the Kellers' driveway, McInnis looked toward the deputies and shouted, "Hey, fuck them, they're only niggers. Hey, come and get me." Approximately 15 minutes after the shooting, Sergeant John Gocke of the San Bernardino County Sheriff's Department arrived on the scene. McInnis, his family and Mr. Dybsand were all outside in front of the house. As Sgt. Gocke was conferring with other officers, he heard McInnis say, "Fuck those niggers." Shortly thereafter, McInnis made a second comment about "niggers."

McInnis became particularly disruptive, yelling, moving his arms about wildly, and moving aggressively towards one of the deputies. Sgt. Gocke eventually arrested McInnis for interfering with the officers during the course of an investigation and for public intoxication. Police officers Gocke, Foster, and Belknap all testified at trial that McInnis had apparently been drinking. Defense witnesses also testified that McInnis was intoxicated on the day of the shooting.

Later on the evening of the shooting, Detective Paula Rago of the San Bernardino County Sheriff's Department obtained consent from McInnis' wife to search McInnis' house and garage. During the search, Detective Rago found in the garage and seized an 8 mm. Mauser rifle, as well as the following:

1. a wooden sign bearing the words "All Niggers Will Be Executed";

2. a Ku Klux Klan poster (picture of a white-hooded person with a flag in the background);

3. a black "Mr. T" doll hanging from the ceiling by a chain and noose;

4. a small black figure with a noose around its neck;

5. a small monkey with a noose around its neck;

6. a lamp bearing two lightning bolts and the initials "S.W.P.";

7. a flashlight imprinted with a swastika, two lightning bolts, and McInnis' nickname, "Red Eye";

8. a wooden plaque with a swastika painted on it;

9. a red cloth (presumably an armband) with a swastika on it;

10. a small poster bearing a swastika, with the words "Niggers Get Out! Go Back To Your Slums!" printed underneath.

In the master bedroom, Detective Rago found a machete with a 15-inch blade inside a canvas sheath with the words "Nigger Sticker" and "Get Out Go Back To Your Slums" on it. Several weeks after the shooting, pursuant to a search warrant, Special Agent Robert Cross of the FBI found a green metal box containing ammunition in McInnis' garage. Pasted on the box was a sticker bearing a swastika and the statement "Who Needs Niggers."

At trial a ballistics expert explained the steps required to fire a round from an 8 mm. Mauser rifle: the bolt is first pulled backward, a cartridge is dropped into the chamber, the bolt is pushed forward, and the gun is fired. To fire a second round, the spent casing must first be ejected by lifting and moving the bolt backward. A second round can then be loaded and fired.

II.

McInnis challenges the sufficiency of the evidence to sustain his conviction on the charge of use of force to interfere with housing rights on account of race, maintaining that the evidence at trial was insufficient to establish that he had the requisite intent necessary for a violation of the statute. In reviewing the sufficiency of the evidence, the court must determine whether, assessing the evidence in the light most favorable to the Government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987), cert. denied, 484 U.S. 1077, 108 S.Ct. 1056, 98 L.Ed.2d 1018 (1988).

To establish a violation of 42 U.S.C. § 3631(a), the Government must prove beyond a reasonable doubt that the defendant acted with the specific intent to injure, intimidate or interfere with the victim because of her race and because of the victim's occupation of her home. See United States v. Skillman, 922 F.2d 1370, 1373 (9th Cir.1990), cert. dismissed, --- U.S. ----, 112 S.Ct. 353, 116 L.Ed.2d 275 (1991); United States v. Wood, 780 F.2d 955, 961-62 (11th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 549 (1986). Voluntary intoxication may be a defense to a specific intent crime. United States v. Sneezer, 900 F.2d 177, 179 (9th Cir.1990).

Viewing the evidence in the light most favorable to the Government, we find the evidence sufficient to support the conclusion that McInnis acted with the requisite intent, despite his apparent intoxication at the time of the shooting. McInnis' statements both before and after the shooting support the jury's finding that he acted with the necessary intent. McInnis made racially derogatory remarks to Raymond Dybsand and gestured toward Mrs. Keller's home within fifteen minutes of picking up his rifle, walking outside and firing on the house. When he gestured toward the house he stated, "Niggers live there," which supports the inference that he shot at the house because he disliked having African-Americans as neighbors. Immediately after hearing the sound of gunshots, the neighbor, Mark Gibson, heard a man yell "All niggers must die!" When police arrived on the scene approximately four minutes after the shooting, Deputy Foster saw McInnis look toward his police car and yell, "Hey, fuck them, they're only niggers. Hey, come and get me." These comments strongly support the finding that McInnis was aware of his acts and that those acts were motivated by racial hatred.

The items seized from McInnis' house and admitted at trial also support the conclusion that McInnis acted with the intent to interfere with Mrs. Keller's housing rights because of her race. Much of the evidence, including the sign reading "All Niggers Will Be Executed," the dolls with nooses around their necks, and the machete in the sheath reading "Nigger Sticker," demonstrate a clear hatred and violent attitude toward African-Americans. Such evidence indicates that McInnis acted with racial motivations. Additionally, one of the signs and the machete sheath stated "Niggers Get Out! Go Back To Your Slums." These items support a finding, not only that McInnis acted based on the Kellers' race, but also that he intended to interfere with their occupancy of their...