U.S. v. Nelson

Decision Date03 May 2000
Docket NumberDocket Nos. 98-1231,DEFENDANTS-APPELLANTS
Citation277 F.3d 164
CourtU.S. Court of Appeals — Second Circuit

Defendants appeal their convictions and sentences, following a jury trial, for violating 18 U.S.C. § 245(b)(2)(B). Defendants argue first that § 245(b)(2)(B) is unconstitutional, and that even if the statute is valid their convictions under it are not. We conclude that § 245(b)(2)(B) is constitutional and that the evidence presented at trial is sufficient to support defendants' convictions under the statute. Accordingly, we reject defendants' contention that we should order the district court to enter a judgment of acquittal. Defendants further argue that the district court committed reversible error in empaneling the jury that convicted them. We accept defendants' argument in this connection and therefore VACATE the verdict of conviction and REMAND the case to the district court for a new trial before a properly selected, impartial jury. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] James E. Neuman, New York, N.Y. for Defendant-Appellant Lemrick Nelson, Jr.

Darell L. Paster, New York, N.Y. for Defendant-Appellant Charles Price.

Alan M. VINEGRAD, Assistant United States Attorney and Valerie Caproni, Special Assistant United States Attorney for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY and Jessica Dunsay Silver and Thomas E. Chandler, Civil Rights Division, United States Department of Justice for Bill Lann Lee, Assistant Attorney General, Civil Rights Division, United States Department of Justice, Washington, D.C. for Appellee United States of America.

Walter E. Dellinger, Jeremy Maltby, and Erika R. Frick, O'Melveny & Myers, Washington, D.C. for Amici Curiae Naacp Legal Defense and Educational Fund, Inc. (Elaine R. Jones, Theodore M. Shaw, and Norman J. Chachkin, of counsel) and Lawyers' Committee for Civil Rights Under Law (Barbara R. Arnwine, Thomas J. Henderson, and Nancy J. Anderson, of counsel).

Norman Redlich and Maritza U.B. Okata, Wachtell, Lipton, Rosen & Katz, New York, N.Y. for Amici Curiae American Jewish Congress (Marc D. Stern, of counsel), American Jewish Committee (Jeffrey Sinesky and Kara Stein, of counsel), Anti-Defamation League (Elizabeth J. Coleman and Steven M. Freeman, of counsel), Jewish Community Relations Council of New York (Marcia R. Eisenberg, of counsel), Jewish Reconstructionist Federation, Union of American Hebrew Congregations (Mark J. Pelavin, of counsel), Union of Orthodox Jewish Congregations of America (Nathan Diament, of counsel), and United Synagogue of Conservative Judaism (Harold Kalb, of counsel).

Nathan Lewin, Miller, Cassidy, Larroca & Lewin, Washington, D.C. for Amici Curiae National Jewish Commission on Law and Public Affairs ("colpa") (Dennis Rapps, Colpa, and David Zwiebel, Agudath Israel of America, of counsel) and Family of Yankel Rosenbaum.

Before: Calabresi, Parker, and Straub, Circuit Judges.

Calabresi, Circuit Judge.

Lemrick Nelson, Jr. ("Nelson") and Charles Price ("Price") appeal their convictions and sentences, under 18 U.S.C. § 245(b)(2)(B) for willfully injuring, intimidating, and interfering with Yankel Rosenbaum ("Rosenbaum"), by force and threat of force, because of Rosenbaum's Jewish religion and because Rosenbaum was enjoying use of a Brooklyn city street. Nelson's and Price's primary contentions on appeal are (a) that § 245(b)(2)(B), as applied to them, is unconstitutional because it reaches conduct that lies beyond Congress's powers of regulation, (b) that the evidence presented at trial was in any event insufficient to support the finding that they had the intent § 245(b)(2)(B) requires, and (c) that the district court's open manipulation of the jury selection process to secure a racially and religiously balanced jury resulted in the empaneling of a biased juror and was unconstitutional. In addition, Nelson and Price present several more discrete claims, involving (a) double jeopardy (for Nelson only), (b) aiding and abetting liability (for Price only), and (c) evidentiary rulings, jury instructions, and sentencing decisions of the district court. We conclude that § 245(b)(2)(B) is constitutional as applied to Nelson and Price and that the evidence was sufficient to show that the defendants had the two-fold intent which that statute requires. Nevertheless, we also conclude that the district court committed reversible error in empaneling the jury. Accordingly, we vacate Nelson and Price's convictions and remand the case for a new trial before a properly chosen jury. We do not, given this disposition, decide most of Nelson's and Price's more discrete contentions. We do, however, affirm with respect to Nelson's claims concerning double jeopardy and Price's claims concerning aiding and abetting liability.


Shortly after eight o'clock in the evening on August 19, 1991, a station wagon struck two children in the Crown Heights area of Brooklyn, New York. The driver of the car was Jewish, and both children were African American. A crowd soon gathered at the scene of the accident. As some of its members attempted to aid the injured children, others began to attack the driver of the car.

The first ambulance to reach the scene was from a Jewish hospital and was readily identifiable as such by Hebrew writing on its sides. The driver of the car that had hit the children was treated by personnel from this ambulance, and, at the direction of police officers who had arrived, the ambulance quickly left the scene in order to protect the injured Jewish driver from the angry crowd. Shortly after the ambulance from the Jewish hospital departed, two New York City ambulances arrived at the accident site. Their crews gave medical assistance to the two injured African-American children, and took them to the hospital. Both children had been seriously hurt; one ultimately died.

In the meantime, a crowd of several hundred people (watched over by between seventy and one hundred police officers) had formed in the neighborhood of the accident. Some members of the crowd complained about Jews and the preferential treatment that Jews allegedly received. They cited, as an example of this favored treatment, the fact that the Jewish driver had received medical attention before the African-American children even though the children were more seriously injured. Some members of the crowd began to throw objects.

At about eleven o'clock, a bald, African-American man later identified as defendant Price began addressing the crowd. Price's speech, which was captured on two videotapes (one made by an NBC cameraman covering the incident and the other made by the superintendent of a nearby building), was angry and aggressive and included, according to police and civilian witnesses, the following statements "[I]f it was a black man that did this they would have been gone to jail instead of being pulled inside of an ambulance for safekeeping." (Trial Tr. ("Tr.") 1573).

"We can't take this anymore. They're killing our children. The Jews get everything they want. The police are protecting them." (Tr. 1369).

"What are we going to do about this? Are we going to take this anymore?" (Tr. 1143).

"Let's get the Jews" and "Eye for an eye. No justice no peace." (Tr. 1692).

In response to Price's exhortations, many people in the crowd began to yell, "Get the Jews." (Tr. 1073). Toward the end of his speech, Price shouted something to the effect of "Let's go to Kingston Avenue and get the Jews."1 (Tr. 1377). Thereupon, a large part of the crowd, including Price and defendant Nelson (who had been in the crowd and had heard Price's speech) proceeded towards Kingston Avenue.

Witnesses testified that prior to Price's speech, the crowd was neither unified nor particularly out of control, but that after he spoke, it became transformed into an explosive mass. It also became violent, throwing objects and setting two cars on fire, attacking a Jewish couple who may have had a baby with them, and assaulting a second Jewish man as he exited a building on Kingston Avenue. As the crowd proceeded past Kingston Avenue and onto the next block (Brooklyn Avenue), it spotted Yankel Rosenbaum ("Rosenbaum"), a bearded man in orthodox Jewish dress. A member of the crowd, possibly Price, yelled "get'em" and "there goes one." (Tr. 1580, 1591). Someone else in the crowd was also heard to shout "get the Jew, kill the Jew." (Tr. 1000).

On being targeted, Rosenbaum sought to escape the mob, running across Brooklyn Avenue and then across President Street. The crowd, however, caught up with him. A group of between ten and fifteen people, including Nelson, then began beating him, knocking him to the ground, and striking him repeatedly. Eventually, a police car approached the scene, causing the attacking group to scatter. Nelson attempted to flee with the rest of the crowd, but (according to an admission Nelson made to his girlfriend Travionne Shaw ("Shaw")) Rosenbaum grabbed hold of Nelson's T-shirt and prevented him from making good his escape. After trying unsuccessfully, by other means, to induce Rosenbaum to let him go, Nelson (again according to the admission made to Shaw) stabbed Rosenbaum and fled.

Nelson was seen running away by the police and was subsequently caught; when searched, he was found to have a bloody knife in his possession. Although Nelson initially denied committing the stabbing, Rosenbaum, (before going to the hospital) identified Nelson out of a lineup of four African-American males, and angrily asked him "[w]hy did you stab me?" (Tr. 1169). Testing conducted later, moreover, revealed that the blood on the knife found on Nelson...

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