U.S. v. Brown, 92-6546

Citation49 F.3d 1162
Decision Date11 May 1995
Docket NumberNo. 92-6546,92-6546
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jonathan David BROWN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

David K. Flynn, Leslie A. Simon, Thomas E. Chandler (briefed), U.S. Dept. of Justice, Civil Rights Div., Appellate Section Washington, DC, for plaintiff-appellee U.S.

Jonathan David Brown, Springfield, MO (briefed), for defendant-appellant Jonathan David Brown.

Before MARTIN and BATCHELDER, Circuit Judges; ENSLEN, District Judge. **

MARTIN, J., delivered the opinion of the court, in which ENSLEN, D.J., joined. BATCHELDER, J. (pp. 1169-1178), delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Circuit Judge.

Jonathan David Brown appeals his jury conviction for one count of being an accessory after the fact to a conspiracy to violate civil rights, in violation of 18 U.S.C. Secs. 3 and 241, and for two counts of making false declarations before a grand jury, in violation of 18 U.S.C. Sec. 1623. On appeal, Brown argues that he could not be an accessory after the fact because there was no underlying offense against the United States. For essentially the same reason, he argues that his convictions for perjury cannot stand. Finally, he challenges the validity of a search that was executed at his home, but does so by claiming error in the district court's denial of his motion to return seized property. We disagree with Brown's contentions and affirm his conviction.

This case stems from the drive-by shooting of a synagogue in Nashville, Tennessee. On June 9, 1990, Damion Patton, a juvenile "skinhead" as described by the Nashville Police, and Leonard William Armstrong, the Grand Dragon of the Tennessee White Knights of the Ku Klux Klan, met Brown at a meeting of white supremacist groups which advocated the hatred of Jewish people. Early on the morning of June 10, around 1:00 a.m., Patton and Armstrong drove by the West End Synagogue in Nashville, which another "skinhead" had been accused of defacing a year earlier by spray-painting a swastika on it. As Patton drove by the synagogue, Armstrong fired several shots into the synagogue with a "Tech 9mm" assault pistol. Due to the early hour, no one was present in the synagogue or injured. However, a member of the synagogue described the effect of the shooting as shocking, intimidating, and perceived as life-threatening. Evidence at trial established that Brown assisted Patton in evading the authorities.

After the shooting, Patton returned to his apartment, where he was arrested later that morning as police broke up an all-night party and confiscated an "AKS-47" rifle. Patton was released the next day into Brown's custody and went to live at Brown's farm in Pleasantville. However, Brown told police that Patton would live at Brown's Nashville apartment as he was about to be evicted from his own. One week later, Brown went to the farm and told Patton that the FBI was looking for him. Brown purchased spray paint and helped Patton paint his car--the one used during the shooting--from white to black. He then provided Patton with a license plate from one of his trucks and cash to help Patton flee the state. Brown later wired additional funds to Patton in Las Vegas. Approximately five months after leaving, Patton returned to Brown's farm and stayed for a month. In September 1991, the FBI located Patton, who pled guilty to federal charges relating to the synagogue shooting.

As part of their ongoing investigation of the shooting, members of the Nashville Metro Police Department had spoken with Brown. On June 12, 1990, after Patton had been released into his custody, Brown told Sergeant Wynn that Patton was living with him until Patton returned to California to live with his father. Based on this information, a federal magistrate in Nashville issued a search warrant for Brown's apartment. Special Agent Dillender of the FBI prepared the affidavit for the search warrant. Dillender was assigned to investigate a number of criminal civil rights incidents in Nashville, including the West End Synagogue shooting. The warrant authorized a search of Brown's apartment for evidence or instrumentalities of these crimes; it was executed on June 15.

On June 19, Brown was subpoenaed to testify before a federal grand jury investigating the synagogue shooting. He testified that Patton lived with him for a few days after his arrest, sleeping on the floor, before going to California. He also testified that the last time he had spoken with Patton was the day before the FBI came to his apartment looking for Patton. One year later, Brown again appeared before a grand jury regarding the vandalism of religious property. Brown testified, truthfully this time, that after the first hearing, Patton did not go to California; instead, a few days later, Patton went to live and work at Brown's farm. Also, Brown testified that when he saw Patton again, Patton had spray painted his car.

Brown appeared before the grand jury a third time on December 10, 1991. The United States maintains that Brown was invited to attend by letter, which advised him that he was a possible defendant in the grand jury's investigation of a shooting into the West End Synagogue. He was advised of his rights in the letter, and again at the beginning of the hearing. He was also told that if he lied to the grand jury, he could be charged with perjury. Nevertheless, when specifically asked whether he painted Patton's car or provided Patton with a license plate, Brown responded that he had not.

On April 22, 1992, Brown was charged in a three-count indictment with perjury and as an accessory after the fact. Count I alleged that he violated 18 U.S.C. Sec. 3 (1988) by attempting "to prevent the apprehension, trial and punishment" of Armstrong and Patton, when he knew they had committed an offense against the United States. That offense was identified as a conspiracy in violation of 18 U.S.C. Sec. 241 "to injure, oppress, threaten and intimidate Jewish inhabitants and citizens of the United States in the free exercise and enjoyment of the right, secured to them by the Constitution and laws of the United States, to hold and use real and personal property in the same manner as that right is enjoyed by all citizens, by firing gunshots into the West End Synagogue." 18 U.S.C. Sec. 241 (1988 & Supp. V 1993). The perjury allegations, Counts II and III, stemmed from Brown's testimony before the grand jury on December 10, 1991. On August 20, 1992, after an eight-day jury trial, Brown was convicted on all counts. He was sentenced on November 12 to imprisonment for two years and three months, three years' supervised release with special conditions, and was assessed a $10,000 fine. Brown filed a timely notice of appeal the same day.

Brown argues that his convictions should be reversed because the West End Synagogue is owned by a corporation and not by citizens. He reasons that because the synagogue property was not held by a citizen, there could be no violation of 42 U.S.C. Sec. 1982 (1988), which enumerates the property rights of citizens. Thus, he asserts that Patton's and Armstrong's actions were not a crime under federal law to which he could be convicted as an accessory after the fact. As to Counts II and III, Brown argues that his perjury convictions cannot stand for the same reason, asserting that the United States fraudulently overreached the grand jury's purpose to generate and sustain an improper inquiry.

I.

To establish a conspiracy to interfere with civil rights, the United States must prove that the defendant knowingly joined a conspiracy to injure, oppress, threaten or intimidate a victim with the intent to deprive him of a civil right and that an overt act was committed in furtherance of the conspiracy. 18 U.S.C. Sec. 241 (1988 & Supp. V 1993); Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The United States need not prove that the defendant actually knew it was a constitutional right being conspired against or violated. United States v. O'Dell, 462 F.2d 224, 232 n. 10 (6th Cir.1972). Because the victims in this case, the Jewish members of the West End Synagogue, do not own the synagogue, the central question in this case is whether their right to "use" property free from racial discrimination is a protected civil right.

The underlying offense to which Brown is an accessory was a conspiracy between Patton and Armstrong to intimidate citizens of the Jewish faith in their right, pursuant to Section 1982, to hold and use real property for worship in the same manner as used by all citizens. Brown argues that the "use" of property is not protected by Section 1982, only the right to "hold" property. He further argues that a citizen must own property in order to be denied the right to hold property. This reading of the statute does not comport with the broad construction courts have traditionally given Section 1982. We agree instead with United States v. Greer, 939 F.2d 1076, 1091 (5th Cir.1991), aff'd en banc, 968 F.2d 433 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993), where the Fifth Circuit rejected an identical argument regarding the defacement and vandalism of a Jewish synagogue and community center in Texas. In reaching our decision in this case, we conclude that Section 1982 must be construed broadly to encompass the "use" of property.

Section 1982 protects the right of citizens to "hold" real and personal property. It states:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Section 1982 was enacted to enable Congress to enforce the Thirteenth Amendment, specifically to "prohibit all...

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