U.S. v. J.H.H., s. 93-1562

• Decision Date: 26 April 1994
• Docket Number: Nos. 93-1562,s. 93-1562
• Parties: UNITED STATES of America, Appellee, v. Juvenile Male J.H.H., Appellant. UNITED STATES of America, Appellee, v. Juvenile Male L.M.J., Appellant. UNITED STATES of America, Appellee, v. Juvenile Male R.A.V., Appellant. to 93-1564.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 821

22 F.3d 821

62 USLW 2719

UNITED STATES of America, Appellee, v. Juvenile Male J.H.H., Appellant.

UNITED STATES of America, Appellee, v. Juvenile Male L.M.J., Appellant.

UNITED STATES of America, Appellee, v. Juvenile Male R.A.V., Appellant.

Nos. 93-1562 to 93-1564.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 12, 1993.

Decided April 26, 1994.

Rick Mattox, Eagan, MN, argued, for appellant in No. 93-1562.

Rae Randolph, Bloomington, MN, argued, for appellant in No. 93-1563.

Robert Malone, St. Paul, MN, argued, for appellant in No. 93-1564.

Linda Thome, Washington, DC, argued, for appellee.

Before BOWMAN, Circuit Judge, LAY and CAMPBELL, ^* Senior Circuit Judges.

BOWMAN, Circuit Judge.

Appellants J.H.H., L.M.J., and R.A.V. appeal their convictions pursuant to 18 U.S.C. Sec. 5031 (1988) for acts of juvenile delinquency, those acts consisting of having conspired to infringe upon civil rights in violation of 18 U.S.C. Sec. 241 (1988), having interfered with federal housing rights by force or threat of force in violation of 42 U.S.C. Sec. 3631 (1988), and having aided and abetted these crimes in violation of 18 U.S.C. Sec. 2 (1988). These convictions stem from appellants' participation in three cross-burnings in the early morning hours of June 21, 1990. We affirm.

I.

Late in the evening of June 20, 1990, several young men gathered at the home of Arthur Miller III, eighteen years old. R.A.V., seventeen years old, was living at the Miller house. J.H.H., fourteen years old, and L.M.J., sixteen years old, came to the Miller home that evening, along with R.A.E., Psalm Cottrell, and Jason Olson ¹, in search of drugs. As the young men talked, the conversation turned to racial issues. Miller, J.H.H., and R.A.V. began discussing their dissatisfaction with racial incidents and their "disgust" at having an African-American family, the Joneses, living in the neighborhood. ² After further conversation in the same vein, Miller proposed burning a cross saying, "Let's go burn some niggers." Tr. at 132.

Appellants and their cohorts went to the basement of Miller's house and constructed a cross. When it was complete the group took it outside, placed it in the Joneses' fenced backyard, poured paint thinner on it, set fire to it, and ran away. Russell and Laura Jones were awakened about 2:30 a.m. by voices outside their home. Noticing a glow coming from outside, they looked out to witness a cross burning in the middle of their yard. Terrified, the Joneses called the police.

A short time later, Miller, R.A.V., L.M.J., J.H.H., R.A.E., and Jason Olson gathered back at the Miller home and constructed two more crosses. The group then went to a nearby apartment building on McLean Street, in which a number of minorities live, and burned the second cross. About 4:30 a.m., the group burned the third cross at a street corner across from the Joneses' house. Russell and Laura Jones were aroused again by noise and a glow outside their window. Afraid that someone was attacking their family, the Joneses once again called the police.

After police investigated the incident, R.A.V. was charged in Minnesota Juvenile Court with a misdemeanor for violating a St. Paul ordinance prohibiting bias-motivated disorderly conduct. ³ The juvenile court dismissed the charge prior to trial on the ground that the ordinance censored expressive conduct in violation of the First Amendment. The Minnesota Supreme Court reversed and remanded. The United States Supreme Court granted certiorari and held that the ordinance was facially invalid because it regulated the content of speech and was not narrowly tailored to serve a compelling state interest. R.A.V. v. City of St. Paul, --- U.S. ----, ----, 112 S.Ct. 2538, 2547, 120 L.Ed.2d 305 (1992).

In October 1992, the United States Attorney for the District of Minnesota filed an information charging appellants as juveniles with violations of 18 U.S.C. Sec. 241 ⁴, 42 U.S.C. Sec. 3631 ⁵, and 18 U.S.C. Sec. 2, aiding and abetting the civil rights violations under Secs. 241 and 3631. The District Court ⁶ conducted a bench trial between January 12 and January 19, 1993. At the trial, Miller, R.A.E., Psalm Cottrell, and L.M.J. testified as to the events that transpired in the pre-dawn hours of June 21, 1990. Russell and Laura Jones testified as to what they experienced and recounted their subjective reactions to the cross-burnings. The District Court also admitted the testimony of Daniel Levitas, a witness offered by the government as an expert on skinheads and other hate groups. Levitas's testimony was presented as evidence of the racial animus of appellants and their intent to threaten the Jones family.

The District Court found each of appellants guilty beyond a reasonable doubt of all three charged offenses. Seeking reversal of their convictions, appellants raise several issues to which we now turn.

II.

J.H.H. and R.A.V. argue that their convictions under 18 U.S.C. Sec. 241 and 42 U.S.C. Sec. 3631 cannot stand because the expressive act of cross-burning is protected by the First Amendment. ⁷

A.

The First Amendment of the United States Constitution declares that "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. To fully effectuate this guarantee, the Supreme Court has held that "conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First ... Amendment[ ].' " Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2729, 41 L.Ed.2d 842 (1974)) (alteration by this Court). Any regulation that allows the government to discriminate against speech or expressive conduct on the basis of the content of the message conveyed is presumptively invalid. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., --- U.S. ----, ----, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991).

At the same time, certain categories, or modes, of expression fall outside the shelter of the First Amendment. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) (per curiam). It is well settled that threats of violence are one of the categories of unprotected speech. R.A.V., --- U.S. at ----, 112 S.Ct. at 2546 ("threats of violence are outside the First Amendment"); Watts v. United States, 394 U.S. 705, 707-708, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (per curiam); United States v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 337, 126 L.Ed.2d 282 (1993). In Bellrichard, a case decided just last year, we upheld the defendant's conviction under 18 U.S.C. Sec. 876 (1988) for sending threatening letters to several public officials. We held that these communications were threats undeserving of First Amendment protection. Bellrichard, 994 F.2d at 1321.

The government argues that the convictions at issue do not violate the First Amendment because J.H.H. and R.A.V. were convicted for using cross-burning as a means to threaten and to intimidate the Jones family. The government points out that 18 U.S.C. Sec. 241 and 42 U.S.C. Sec. 3631 are not directed toward protected speech, but are directed only at intentional threats, intimidation, and interference with federally guaranteed rights. The government further emphasizes that the statutes punish any threat or intimidation, or conspiracy to threaten or to intimidate, violating the statutes regardless of the viewpoint guiding the action. This, the government contends, distinguishes prosecution under these statutes from prosecution pursuant to the St. Paul ordinance invalidated in R.A.V. We agree.

In R.A.V., the Supreme Court reiterated the well-established principle that some categories of expression fall outside the bounds of the First Amendment. R.A.V., --- U.S. at ----, ----, 112 S.Ct. at 2543, 2546. The Court made clear, however, that the government may not use even these categories of expression as "the vehicles for content discrimination unrelated to their distinctively proscribable content." Id. at ----, 112 S.Ct. at 2543. The St. Paul ordinance failed to pass constitutional muster not because it punished "fighting words," but because it punished only those "fighting words" that threaten or provoke violence " 'on the basis of race, color, creed, religion or gender.' " Id. at ----, 112 S.Ct. at 2547. Later, finding that the St. Paul ordinance was not narrowly tailored to serve a compelling state interest, the Court observed that a content neutral law, one "not limited to the favored topics," would have the same beneficial effects without trespassing upon the rights secured by the First Amendment. Id. at ----, 112 S.Ct. at 2550. Sections 241 and 3631 are such statutes, punishing all threats and intimidation made in connection with the exercise of federally guaranteed rights or privileges.

Moreover, in R.A.V. the Court held that, where "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable," the distinction is adjudged content neutral. Id. at ----, 112 S.Ct. at 2545. As an example, the Court offered the statute upheld in Watts, 394 U.S. at 707, 89 S.Ct. at 1401, a statute that criminalizes threats of violence made against the President, see 18 U.S.C. Sec. 871. Similarly, in Boos v. Barry, the Court compared a constitutionally invalid District of Columbia ordinance, which prohibited the display of signs within 500 feet of a foreign embassy if the signs tended to bring the foreign government into "public odium" or "public disrepute," to the constitutionally permissible federal statute prohibiting only "activity undertaken to intimidate, coerce, threaten or harass" a foreign official. Boos v. Barry, 485 U.S. 312, 316, 326, 108 S.Ct. 1157, 1161, 1166, 99 L.Ed.2d 333 (1988) (internal quotations omitted). The St. Paul ordinance did not fall within...