U.S. v. Allen

Decision Date26 August 2003
Docket NumberNo. 02-30083.,No. 02-30084.,No. 02-30079.,No. 02-30085.,No. 02-30081.,No. 02-30082.,02-30079.,02-30081.,02-30082.,02-30083.,02-30084.,02-30085.
Citation341 F.3d 870
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sean Allen, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eric Adam Dixon, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeremiah Skidmore, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jason Guy Potter, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ryan Flaherty, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Flom, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Robert L. Kelleher, Jr., Kelleher Law Office, Billings, Montana, for defendant-appellant Sean Allen.

Wendy Holton, Helena, Montana, for defendant-appellant Eric Dixon.

Palmer A. Hoovestal, Hoovestal & Kakuk, PLLC, Helena, Montana, for defendant-appellant Ryan Flaherty.

Larry Jent, Williams & Jent, PLLP, Bozeman, Montana, for defendant-appellant Michael Flom.

Penelope S. Strong, Billings, Montana, for defendant-appellant Jason Potter.

Lynn T. Hamilton, Hamilton Law Office, Mesa, Arizona, for defendant-appellant Jeremiah Skidmore.

Ralph F. Boyd, Jr., Assistant Attorney General, Jessica Dunsay Silver and Tovah R. Calderon, United States Department of Justice, Civil Rights Division, Washington, D.C., for plaintiff-appellee United States of America.

Appeals from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-01-00067-RFC.

Before: Thomas M. Reavley,* A. Wallace Tashima, and Richard A. Paez, Circuit Judges.


PAEZ, Circuit Judge:

At around 10:30 p.m. on July 29, 2000, Spring Ramirez, a Hispanic woman, Jason Clark, an African American man, and Pat Tellez, a Hispanic man, were socializing at Pioneer Park, a local park in Billings, Montana, when approximately nine white supremacists who were "patrolling" the park for racial minorities and Jews, surrounded them wielding weapons, berated them with racial epithets, and forced them out of the park for no reason other than their race. A federal grand jury indicted the defendants in this caseSean Allen ("Allen"), Eric Dixon ("Dixon"), Ryan Flaherty ("Flaherty"), Michael Flom ("Flom"), Jason Potter ("Potter"), and Jeremiah Skidmore ("Skidmore") — with violating 18 U.S.C. §§ 241 and 245(b)(2)(B), statutes that protect against the interference with federally protected rights on the basis of race and religion. The defendants appeal their convictions and sentences.

The principal issues on appeal are whether Pioneer Park is a place of "public accommodation" such that the defendants properly were convicted under § 241 and whether § 245(b)(2)(B) was validly enacted pursuant to Congress's Commerce Clause and Thirteenth Amendment powers. These are issues that we have not addressed in this circuit. In addition, the defendants appeal certain evidentiary rulings at trial, in particular the admission of assertedly prejudicial skinhead evidence, as well as the application of several sentencing enhancements.

We hold that Pioneer Park is a place of public accommodation and that the enactment of § 245(b)(2)(B) was a constitutional exercise of both Congress's Commerce Clause and Thirteenth Amendment powers. We also affirm the district court's evidentiary rulings and sentencing decisions.


In the spring of 2000, Allen, Dixon, Skidmore, Thomas Edelman ("Edelman"), and Jeremiah Johnson ("Johnson") started an organization called the Montana Front Working Class Skinheads ("MFWCS") in Billings, Montana. The MFWCS was a white supremacist, neo-Nazi group, the purpose of which was "to rid the world of all the scum," including racial minorities and Jews, using whatever means it took, including violence. Indeed, the fourteen-word "motto" of the MFWCS was: "We must secure the existence of our people in the future for white children." The members of the MFWCS believed that it was their duty to finish what Hitler started — the killing of millions of racial minorities and Jews — and to be prepared for the RAHOWA, or racial holy war, by remaining armed at all times.

Members of the MFWCS wore a specialized uniform consisting of white tee-shirts, black pants, red suspenders and shoe laces, and black boots, and they shaved their heads. They listened to hate music, read racist literature, and had tattoos consisting of, among other images, swastikas, the "88" ("Heil Hitler") symbol, Hitler, faceless working skinheads, and the "SS" symbol (members earned the "SS" symbol by severely beating non-white persons). Indeed, the MFWCS earned recognition on a retreat at the Aryan Nation compound at Hayden Lake, Idaho, for being the "most uniformed crew there."

Allen, Dixon, and Skidmore, the leaders of the MFWCS, encouraged members, such as Edelman and Johnson, to recruit minors sixteen years of age and older into the group because minors were less likely than adults to go to prison for committing violent acts. As Kevin Cox, a minor who associated with the MFWCS and who participated in the "park patrol" at issue in this case testified, younger guys needed to earn status within the group, which they could accomplish by going out and "causing trouble" because they received less harsh punishments than the elders. Indeed, four minors — Sara Fairchild (Edelman's girlfriend), Dustin Neely, Kevin Cox, and Jason Williams — participated in the July 29, 2000 "park patrol," discussed below.

To gain status within the MFWCS, members were required to earn red suspenders and red shoe laces. Allen, Dixon, and Skidmore told members, including recruits, that they could earn their suspenders ("braces") and laces by physically beating up or harming racial minorities and Jews, and they encouraged members to earn many sets of suspenders and laces. Allen, Dixon, and Skidmore told Edelman, for example, to "Just go clean the town of all scum. You know, clean up our nation." Edelman and Johnson earned their suspenders by beating up a "prairie nigger"1 (Native American).

On July 29, 2000, Allen hosted a barbecue at his house that many members and affiliates of the MFWCS, including Allen, Dixon, Skidmore, Potter, Flaherty, Flom, Edelman, Fairchild, Johnson, Neely, Cox, Williams, and Emily Ehresman (Allen's girlfriend) attended. At the barbecue, the idea of engaging in a "park patrol" was raised.2 The purpose of a "park patrol" was to walk through a park and "clean out all the minorities," if necessary through violence. Allen and Dixon participated in discussions about the "park patrol,"3 but they feared that the participants would go to prison and thus be of no use to the "crew." Allen therefore instructed Edelman and Johnson to be cautious and to keep an eye on the younger participants and on Flaherty, who was not from Billings, had a broken jaw, and had never before participated in a park patrol.

Edelman, Fairchild, Johnson, Flom, Potter, Flaherty, Williams, Cox, and Neely left the barbecue to "patrol" Pioneer Park. They traveled to the park in Johnson's truck, from which they gathered weapons, including axe handles, flat bars, chains, and broomsticks, to use during the patrol. Each participant (except Fairchild) carried a weapon. When they arrived at Pioneer Park at approximately 10:30 p.m., Johnson dropped the participants off at each corner of the park, and they then moved toward the center of the park looking for racial minorities and Jews.

Cox and Neely ran into some white kids, but they left them alone once they learned that they were white. Soon thereafter, Cox, Neely, and the other "park patrol" participants noticed Spring Ramirez, Jason Clark, and Pat Tellez at a table drinking beer. As they approached Ramirez, Clark, and Tellez, the "park patrollers" told them to pick up their cans and not to litter the park. Edelman then told Ramirez, Clark, and Tellez to pick up their stuff and to leave the park immediately. Some of the "park patrollers" then yelled, "What are you doing in the park this late?" Others also chimed in with similar remarks. The two men began to walk away and the "park patrollers" fanned out and followed them, yelling "Get out of the park" as well as racial slurs. The men were told that if they did not leave, they would be removed. The men then dropped their cooler and began to run, and the "park patrollers" (everyone but Fairchild) followed them out of the park and into the street. One man ran into a house and the other ran to the side of the house for safety. Once the men escaped, the group walked back toward the park where they encountered the woman. Flom and others yelled racial slurs at the woman and told her, "We're going to get you. You're going to die." The woman ran into a house for safety. The police arrived at the park soon thereafter.

The day after the "park patrol," Allen, Dixon, and Skidmore "chewed out" Edelman and Johnson for not chasing the man into the house, catching him, and beating him up, and for getting caught by the police.

Allen, Dixon, Skidmore, Potter, Flaherty, and Flom were charged in the District Court for the District of Montana, in a four-count indictment, with violating 18 U.S.C. §§ 241 and 245(b)(2)(B). Specifically, Count I of the Indictment alleged:

From on or about March 1, 2000, until on or about October 30, 2000, in the City of Billings in the State and District of Montana, the defendants Sean Allen, Eric Dixon, Jeremiah Skidmore, Jason Potter, Ryan Flaherty, and Michael Flom along with others known and unknown to the grand jury, willfully combined, conspired, and agreed with one another and others to injure, oppress, threaten, and intimidate African-American, Hispanic, Jewish, and Native American persons in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and...

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