U.S. v. Pospisil, 98-2729

• Decision Date: 23 April 1999
• Docket Number: No. 98-2729,98-2731,98-2729
• Citation: 186 F.3d 1023
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Dennis C. Pospisil, Appellant. United States of America, Appellee, v. Barney L. Pospisil, Jr., Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1023

186 F.3d 1023 (8th Cir. 1999)

United States of America, Appellee, v. Dennis C. Pospisil, Appellant.

United States of America, Appellee, v. Barney L. Pospisil, Jr., Appellant.

No. 98-2729, 98-2731

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: April 23, 1999

Filed: August 9, 1999

Rehearing and Rehearing En Banc

Denied Sept. 9, 1999

Appeals from the United States District Court for the Western District of Missouri. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before WOLLMAN ¹ and LOKEN, Circuit Judges, and JACKSON,² District Judge.

WOLLMAN, Chief Judge.

Dennis C. Pospisil (Dennis) and his brother Barney L. Pospisil, Jr. (Barney) were convicted under 18 U.S.C. 241 of conspiring to violate civil rights as a result of their involvement in a cross burning in Rushville, Missouri. Dennis was also convicted of interfering with housing rights in violation of 42 U.S.C. 3631 and of using a firearm during a crime of violence in violation of 18 U.S.C. 924(c). Both men appeal their convictions and sentences. We affirm in part and reverse in part.

I.

On August 15, 1997, Liza Costa and her three children, ages 13, 11, and 7, moved into a home in Rushville. Mistakenly believing that the Costas were African-American, ³ Dennis, Devin Peck, and Ted Fenton made a plan to lead a caravan around the Costas' home and burn a cross in their yard to scare them out of town.

On August 22, 1997, Dennis welded metal pipe into the shape of a cross and sharpened the base of the cross to a point. Dennis then took the cross to Barney, explained that they wanted to burn it "in the niggers' yard," and asked if he had something to wrap around the cross to make it flammable. Barney said he would "take care of it." He directed his ex-girlfriend to wrap the cross in towels, and he secured the. towels in place with wire. Barney then returned the cross to Dennis and agreed to meet him at 10:00 p.m. at the volunteer fire station, where the group was to meet and proceed to the Costa home.

When Dennis arrived at the fire station, he was wearing a .22 caliber revolver in a shoulder holster. Dennis, Peck, and Fenton took turns pouring gasoline on the cross. When Barney arrived, Dennis called the group together for a "town meeting." Approximately twenty people were present, including at least seven minors. Dennis talked about "niggers" moving into the community and urged the crowd to join in running them out of town. Barney stood directly beside Dennis, remarked that whites needed to stand up to "niggers," and gave a speech about "white power." When some of the young people indicated that they did not wish to participate in the attack on the Costas, Dennis and Barney shouted epithets at them and threw rocks and beer cans as they left the gathering.

After this episode, Barney suggested to Dennis that it was not a good night for the cross burning because too many people knew of the plan. Dennis said that he would burn the cross while Barney and the rest of the group went to Dennis's home. Dennis, Peck, and one of the minors then proceeded to the Costa home. With his revolver still displayed in his shoulder holster, Dennis stuck the cross in the front yard and lit it. Peck slashed the tires of the Costas' vehicle. They circled the Costa home in their vehicle, and Dennis fired several shots into the air as they drove away.

Dennis and Barney were indicted for conspiring to violate civil rights under 18 U.S.C. 241 and for interfering with housing rights under 42 U.S.C. 3631. Dennis was also indicted for using a firearm during a crime of violence in violation of 18 U.S.C. 924(c). Dennis was convicted on all three counts and sentenced to 144 months' imprisonment. Barney was convicted of conspiring to violate civil rights and sentenced to thirty-seven months' imprisonment. In this consolidated appeal, they raise some claims jointly and some individually.

II.

Both defendants raise the following claims of error: the district court's grant of the government's Batson challenge; the sufficiency of the evidence demonstrating an intent to threaten physical violence; the court's denial of their motion for a mistrial based on improper prosecutorial comments; and the court's imposition of two-level sentencing enhancements because the Costas were vulnerable victims.

A.

The defendants claim that the district court erred when it found that their peremptory strikes of two African-American venire persons violated Batson v. Kentucky, 476 U.S. 79 (1986). See Georgia v. McCollum, 505 U.S. 42, 59 (1992) (recognizing that Batson prohibits both prosecutors and defendants from using peremptory strikes in a discriminatory manner). Specifically, they claim that they had a race-neutral reason for the strikes. We review for clear error the district court's finding that this reason was a pretext for intentional discrimination. See Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997).

The defendants' race-neutral reason for the strikes was that the venire persons had heard news accounts of the cross burning and were government employees in some capacity. The district court found this pretextual, however, because Caucasians with similar experiences were not struck. Furthermore, defense counsel admitted during voir dire that "race was a factor" in making the strikes because African-Americans would "have a difficult time with this case and would[] identify with Miss Costa." Trial Tr. at 206-07. Nothing in the record leads us to conclude that the district court's finding of pretext was clearly erroneous.

In the alternative, the defendants ask us to carve out an exception to Batson for cases involving "race-related issues." We decline to do so. The Supreme Court "firmly has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror." McCollum, 505 U.S. at 59. In cases that involve racially motivated crimes, counsel may question venire persons about race-related bias and strike them if there is specific reason to believe that they "would be incapable of confronting and suppressing their racism." Id. at 58. In this case, the defendants attempted to base their strikes on an assumption of partiality based on race rather than comments by the venire persons that demonstrated racism. Accordingly, we affirm the district court's grant of the government's Batson challenge.

The defendants also dispute the timeliness of the government's challenge and argue that the court should have declared a mistrial rather than seating the two African-Americans because the jury was given the impression that the defendants were racist. The record shows, however, that the government raised the challenge as soon as it learned of the defendants' peremptory strikes. In addition, the decision whether to declare a mistrial is within the sound discretion of the district court. See Miller v. United States, 135 F.3d 1254, 1256 (8th Cir. 1998). No abuse of that discretion occurred here.

B.

Next, the defendants challenge the sufficiency of the evidence showing that they intended to threaten the Costas with physical violence. The jury was instructed not to convict under 18 U.S.C. 241 without a finding that "the defendant acted with the intent to threaten . . . the Costa family with physical force or violence, to incite others to imminent lawless action, or to cause . . . the Costa family reasonably to fear the imminent use of physical force or violence." Jury Instruction No. 11, Appellee's Br. at Add. 2. This instruction was consistent with instructions mandated by our decisions involving prosecutions for cross burning under section 241. See United States v. Lee,. 6 F.3d 1297, 1304 (8th Cir. 1993) (en banc) (per curiam); United States v. J.H.H., 22 F.3d 821, 826 (8th Cir. 1994).

In Lee, the defendants stated that they burned the cross to "'make a statement, . . . to leave our kids alone'" and "to do something about 'the people that (sic) lived upstairs.'" 6 F.3d at 1303. The victims in that case testified that they were afraid and "understood that a burning cross meant that 'white people were trying to get rid of the blacks.'" Id. at 1303-04. We held that such statements by perpetrators and victims were sufficient evidence of an intent to threaten violence to present the case to the jury. Id. In J.H.H., the defendants' convictions under section 241 were upheld based on statements that they burned the crosses to "send a message to the . . . family to move out" and "to threaten and to intimidate the African-American family." 22 F.3d at 827.

Here, Dennis said "the only good nigger is a dead nigger" as he constructed the cross. Barney replied, "[I'm not] prejudiced, [I think] everybody ought to own [an African-American]." At the fire station, Dennis talked about "white supremists (sic) and how the niggers had no right being in our town" and urged the crowd to join in "running the niggers out of town." Barney "backed his brother up" and encouraged the crowd to "stick against the niggers." At trial, Dennis testified that the purpose of the cross burning was to "send a strong message and scare [the Costas] so they would move out of town."

In addition to the overwhelming evidence of the defendants' intentions, Costa testified that she and her children felt physically threatened by the cross burning. After seeing Dennis's weapon and observing the perpetrators' vehicle circle her home, Costa "was worried about getting shot." Her children had nightmares, stopped sleeping in their rooms, and began checking the house for intruders. Costa worried that the cross burners would return to hurt her children and interpreted the cross burning to mean "that I should get out of town, that there would be more to come if I didn't heed their warning." In light of Lee and J.H.H., this was sufficient evidence for the jury to. conclude that the defendants intended to threaten the Costas with physical violence in...