U.S. v. Gilbert
| Decision Date | 06 April 1987 |
| Docket Number | No. 86-3072,86-3072 |
| Citation | 813 F.2d 1523 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Keith Dwayne GILBERT, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wm. Bradford Reynolds, Irving Gornstein and Lisa J. Stark, Washington D.C., for plaintiff-appellant.
Kim R. Lindquist, Weiser, Idaho, for defendant-appellee.
Appeal from the United States District Court for the District of Idaho.
Before HUG, SKOPIL and FLETCHER, Circuit Judges.
Defendant-appellee Keith Dwayne Gilbert was charged in a one-count information and a four-count indictment of violating the Fair Housing Act, 42 U.S.C. Sec. 3631(b) and (c) (1982). The district court dismissed the information for failure to state an offense. The government requested a continuance of the trial on the indictment charges or, alternatively, a dismissal without prejudice. The district court denied the continuance, and when the government refused to proceed to trial, the court dismissed the indictment with prejudice. We reverse and remand.
Gilbert allegedly mailed racially derogatory and threatening correspondence to the director of an adoption organization responsible for the placement and adoption of black and Asian children in Kootenai County, Idaho. The correspondence consisted of a letter condemning the agency's actions and flyers threatening death to minorities and those who associate with minorities. Gilbert was charged by information with violating 42 U.S.C. Sec. 3631(c). The information alleged that he willfully intimidated and interfered with the director to discourage her from aiding minority children's occupancy of dwellings in Kootenai County.
After the information was filed, a grand jury returned a four-count indictment against Gilbert. The indictment charged Gilbert with violating 42 U.S.C. Sec. 3631(b). Gilbert allegedly (1) drove an automobile at a black child; (2) verbally threatened a white male who has a black step-brother; (3) ordered his dog to attack a black child; and (4) spat in the face of a mentally retarded black child.
After arraignment Gilbert waived his right to a speedy trial and requested a continuance. The district court granted the continuance and excluded the period of delay from any future speedy trial calculations. The court subsequently approved the government's motion to join the information and the indictment for trial.
On the day before trial, the district court granted Gilbert's motion to dismiss the information for failure to charge an offense under section 3631(c). The court denied a motion for reconsideration. A request for continuance of the trial on the indictment charges was also denied. Finally, the government moved to dismiss the indictment without prejudice. The district court rejected that motion and dismissed with prejudice. The government appeals, contending that (1) section 3631 reaches interference with the director of an adoption agency; and (2) the district court erred when it dismissed the indictment with prejudice.
The Fair Housing Act, 42 U.S.C. Secs. 3601-3631 (1982), originated as Title VIII of the Civil Rights Act of 1968, Pub.L. No. 90-284, Sec. 801 et seq., 82 Stat. 81-89 (1968). The "Prevention of Intimidation" section was attached to the civil rights legislation as Title IX and incorporated into the Fair Housing Act as section 901, 82 Stat. 89 (1968). The text of section 901, as codified and amended at 42 U.S.C. Sec. 3631 (1982), provides:
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--
(a) any person because of his race, color, religion, sex, or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings; or
(b) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from--
(1) participating, without discrimination on account of race, color, religion, sex, or national origin, in any of the activities, services, organizations or facilities described in subsection (a) of this section; or
(2) affording another person or class of persons opportunity or protection so to participate; or
(c) any citizen because he is or has been, or in order to discourage such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion, sex, or national origin, in any of the activities, services, organizations or facilities described in subsection (a) of this section, or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate--
shall be fined not more than $1,000, 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.
In applying this statutory provision the district court concluded that "adoption efforts focus on placement of a child with a family and not on placement of a child in a dwelling." The court admitted that "placement with a family necessarily requires placement in a dwelling." Nonetheless, the district court found that the connection between the activities of an adoption agency and the occupation of a dwelling was "simply too remote." The government argues that the district court construed too narrowly the reach of protected activities and the definitions of "dwelling" and "occupation." Gilbert, on the other hand, maintains that the district court properly interpreted the statute to protect only someone who actively, primarily, and directly helps a protected class occupy a dwelling.
Our review is de novo. See United States v. Louisiana-Pacific Corp., 754 F.2d 1445, 1447 (9th Cir.1985) (); United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.) (sufficiency of information is reviewed de novo), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 321 (1983). Criminal statutes are to be strictly construed in favor of an accused, see United States v. Kelly, 527 F.2d 961, 964 (9th Cir.1976), but that principle does not allow us to ignore a statute's evident purposes, United States v. Hurt, 795 F.2d 765, 770 (9th Cir.1986).
The Fair Housing Act is intended "to provide, within constitutional limitations, for fair housing throughout the United States." 42 U.S.C. Sec. 3601. The Supreme Court has observed that this expansive approach is carried throughout the Act, and that the Act as a whole is "broad and inclusive" and should be given "generous construction." Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 212, 93 S.Ct. 364, 366-67, 368, 34 L.Ed.2d 415 (1972), accord Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1011 (7th Cir.1980).
Although the language of the Act is broad, it is also specific. In section 3631, Congress describes both protected and prohibited activities. The government claims that the plain meaning of section 3631 includes activities of an adoption agency attempting to place minority children in a community. We agree that the director of an adoption agency is indeed potentially covered under the plain meaning of subsection (c), as "any citizen ... lawfully aiding or encouraging other persons to participate, without discrimination ... in any of the activities ... described in subsection (a)." 42 U.S.C. Sec. 3631(c). The critical issue in our minds, however, is whether the placement of minority children by an adoption agency is a protected activity under subsection (a), as those activities are incorporated into subsection (c). The activities listed in subsection (a) include the "selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing, or occupation of any dwelling." 42 U.S.C. Sec. 3631(a).
Legislative history of section 3631 is sparse because the section was added during debate in the Senate (114 Cong.Rec. 4570-4573 (1968)). Civil rights legislation, now codified at 18 U.S.C. Sec. 245 (1982), was the model for section 3631. When section 3631 was introduced in Congress, its sponsors noted the similarity to the criminal provisions of section 245. The criminal sanctions of section 245, and section 3631 by implication, reflect a broad purpose. S.Rep. No. 721, 90th Cong., 2d Sess., reprinted in 1968 U.S.Cong. & Admin.News 1837, 1842. We believe this underlying purpose was given effect through the specific list of protected activities in section 3631. Significantly, there are no exceptions or exclusions in the entire section. To the contrary, the language invites an expansive interpretation to the list of protected activities.
Case law also supports a broad interpretation of the Act. Many cases brought under section 3631 present clear violations. In United States v. Redwine, 715 F.2d 315 (7th Cir.1983), cert. denied, 467 U.S. 1216, 104 S.Ct. 2661, 81 L.Ed.2d 367 (1984), for example, the court upheld convictions under section 3631 where the defendants threw rocks, shouted racial epithets and threats, and eventually...
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