U.S. v. Gresser

• Decision Date: 28 May 1991
• Docket Number: 90-3422 and 90-3505,Nos. 90-3414,s. 90-3414
• Citation: 935 F.2d 96
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Todd J. GRESSER (90-3414/3505) and Timothy L. Singer (90-3422/3505), Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 96

935 F.2d 96

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Todd J. GRESSER (90-3414/3505) and Timothy L. Singer

(90-3422/3505), Defendants-Appellants, Cross-Appellees.

Nos. 90-3414, 90-3422 and 90-3505.

United States Court of Appeals, Sixth Circuit.

Argued April 30, 1991.

Decided May 28, 1991.

Clarence B. Taylor, Asst. U.S. Atty., Office of U.S. Atty., Cleveland, Ohio, Miriam R. Eisenstein (argued), Dennis J. Dimsey, U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, D.C., for plaintiff-appellee, cross-appellant.

Richard A. Damiani, Cleveland, Ohio, David J. Gornik (argued), Eastlake, Ohio, for defendant-appellant, cross-appellee Todd J. Gresser.

Stewart I. Mandel, Cleveland, Ohio, Donald Green (argued), Cleveland Heights, Ohio, for defendant-appellant, cross-appellee Timothy L. Singer.

Before KEITH and MILBURN, Circuit Judges, and COHN, District Judge. ^*

MILBURN, Circuit Judge.

Defendants-appellants Todd Gresser and Timothy Singer appeal their convictions for conspiracy to violate the rights of blacks to hold and occupy their dwellings, violations of 18 U.S.C. Sec. 241; use of force and threat of force in furthering racial discrimination, violations of 42 U.S.C. Sec. 3631(a); and the use of fire or explosives in the commission of a felony, violations of 18 U.S.C. Sec. 844(h)(1). The convictions are all based on a cross-burning incident across the street from Singer's home. The government cross-appeals the sentences imposed. For the reasons that follow, we affirm the judgments of conviction, but we vacate the sentences and remand.

I.

A.

A federal grand jury charged Singer and Gresser in a three-count indictment returned September 21, 1989. The first count alleged a conspiracy in violation of 18 U.S.C. Sec. 241 to interfere with the rights of black citizens to hold and occupy their dwellings without injury, intimidation, or interference because of their race. The second count charged the defendants with violating 42 U.S.C. Sec. 3631(a) by employing force and threat of force to willfully intimidate and interfere with blacks because of their race regarding their occupation of their dwellings. The third count charged the defendants with violating 18 U.S.C. Sec. 844(h)(1) by using fire to commit the felony of conspiring to violate the civil rights of others.

On January 22, 1990, after a joint trial which began on January 17, 1990, a jury found both defendants guilty of all counts. On April 30, 1990, the district court sentenced Singer to thirty months on counts 1 and 3 with a concurrent sentence of twelve months on count 2 and three years of supervised release. Gresser was sentenced to twenty-seven months imprisonment and three years supervised release. The court entered judgment including sentence on May 2, 1990, and defendants Gresser and Singer filed notices of appeal on May 4, 1990, and May 7, 1990, respectively. The government filed a timely cross-appeal challenging the sentences.

B.

On August 12, 1988, at about 9:30 p.m., Donna and Jennings Mason ¹ were sitting on their front porch at 1629 Ute Avenue, Massillon, Ohio, when they observed their neighbor of over five years, defendant Singer, pulling out of his carport. Singer was accompanied by a female friend named Carol Johnson and at least one other person. When two black youths came down the street with a large radio, that was playing loudly, Johnson yelled, "Will you damn niggers turn that mother ------- music down!" An argument ensued between the black youths and the white occupants of the automobile. One of the blacks, identified by Singer as Eric King, hit Singer with a piece of concrete, injuring his face. Johnson took a lead pipe out of the car for Singer to use as a weapon, but he declined.

Sometime during the altercation, Donna Mason called the police. When the police arrived, the two black youths ran away. Singer was enraged and yelling racial epithets such as "you mother ------- niggers come out now." Singer told the investigating officer, "If you G-- D--- cops don't take care of it, I know who he is. I know where he lives. I'll go down there myself and I'll take care of the son-of-a-bitch myself." Tr. 146. The record shows that Eric King lived about a mile and one-half away from Singer. The police officer left the scene after unsuccessfully attempting to calm Singer down.

Singer and Johnson also left the scene but returned a short time later with another man. The unidentified man paced around Singer's yard brandishing a rifle or a shotgun. Singer and Johnson walked over to the Masons who were sitting on their front porch. Singer stated that he had a gun and a half stick of dynamite in his pocket and was going to "blow up all those mother ------- niggers." Tr. 46. Mr. Mason noticed that Singer's pocket was bulged. Tr. 68.

A short time later, defendant Gresser arrived at Singer's home. Singer yelled racial epithets from his yard, and the Masons heard sounds coming from behind Singer's garage which they identified as nails being pounded into boards. Jennings Mason later saw Singer and Gresser "stumped over carrying something" that appeared to be a large piece of wood about nine feet long. Thereafter, there was a loud explosion which rattled the dishes in the Masons' cabinets, and a cross went up in flames. At the time of the explosion and moments later, the Masons heard more racial epithets, and Mr. Mason saw Singer and Gresser running back toward Singer's house.

Terrence Jaycox, who lived at 1620 Ute Avenue across the street from the Masons and Singer, was watching television late at night when he saw the orange light of a fire. He looked out the window and saw a cross burning on the vacant lot next to his property. At about the same time, he heard and felt an explosion. Jaycox saw three men running away from the scene. During this time Jaycox also heard a "lot of racial slurs" such as, "---- you nigger. We going to get you." Tr. 99.

Elenore Peterson, who also lived adjacent to the vacant lot, was awakened early in the morning of August 13, 1988, by something "real bright." When she looked out the window, she saw a cross burning. She also heard a loud explosion which rattled the windows. The next morning Peterson observed racial epithets spray painted on the back of her house. Similar epithets were painted on adjoining houses. ²

FBI agent William Stutler conducted an investigation following the incident. He obtained exemplars of spray painting from Singer and Gresser and sent them to the FBI laboratory, but the results were inconclusive. A background check of Singer revealed no affiliation with any white supremacy group. Stutler did not find wood similar to the cross on Singer's property, nor did he find any spray paint cans.

After the close of the government's proof, the defendants rested and moved for judgments of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. The court denied the motions.

C.

Defendants were sentenced under the United States Sentencing Guidelines. In sentencing the defendants, the district court utilized the base offense level of thirteen points which corresponded with the presentence investigation report ("PSI") "total offense level" of thirteen. In the PSI the probation officer who prepared the report recognized that all three counts of the indictment were "closely related" counts which should be grouped, and recommended thirteen as the base level for the conspiracy under the United States Sentencing Guidelines Sec. 2H1.2(a)(1) ("U.S.S.G."). The probation officer reached this result by refusing to treat the other offenses as underlying offenses thereby avoiding the alternative possibility under 2H1.2(a)(2) of "2 plus the ... underlying offense." The government objected that language directing the court to "[a]pply the greater" of the alternatives meant that the court should begin with the offense level for the use of fire and explosives count as the underlying offense (2K1.4), increase it by two for the use of force charge under 2H1.3(a)(1) as the intermediate offense underlying the conspiracy, with an additional two offense levels added under section 2H1.2(a)(2) for the conspiracy as the principal offense. The district court rejected the government's arguments without explanation.

Instead, the court began with a base offense level of thirteen and enhanced Singer's sentence two levels because of his being the leader of a conspiracy, see U.S.S.G. Sec. 3B1.1(c), and an additional two levels because of "victim vulnerability." See U.S.S.G. Sec. 3A1.1. Gresser's base offense level of thirteen was raised two levels for "victim vulnerability."

The principal issues presented in this appeal are (1) whether the evidence was sufficient to support the convictions, and (2) whether the district court erred in calculating the offense level by failing to treat the 18 U.S.C. Sec. 844(h)(1) conviction as an underlying offense.

II.

A.

In reviewing an appeal from a criminal conviction on the ground that the evidence is insufficient to support the verdict, we determine "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The test is the same whether the evidence is direct or circumstantial. Id.

The interpretation of the United States Sentencing Guidelines to determine whether section 2K1.4 of the guidelines should apply to cross-burning is comparable to statutory interpretation. United States v. Worthy, 915 F.2d 1514, 1516 (11th Cir.1990). Therefore, the district court's interpretation of the guidelines is subject to de novo review. Id.; see United States v. Rodriguez, 882 F.2d 1059, 1065-67...