U.S.A v. White, 09-2916.
| Decision Date | 28 June 2010 |
| Docket Number | No. 09-2916.,09-2916. |
| Parties | UNITED STATES of America, Plaintiff-Appellant,v.William WHITE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William E. Ridgway, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.
Nishay K. Sanan, Attorney (argued), Chicago, IL, for Defendant-Appellee.
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
A superseding indictment alleged that William White was the founder and content provider of a website that posted personal information about a juror who served on the Matthew Hale jury, along with postings calling for the use of violence on enemies of white supremacy. In connection with these postings, White was charged with soliciting a crime of violence in violation of 18 U.S.C. § 373. The district court dismissed the indictment, holding that White's internet posting could not give rise to a violation under § 373 because it was protected by the First Amendment. Because we find that the indictment is legally sufficient to state an offense, we reverse the district court's dismissal.
According to the government's indictment, William White created and maintained the website Overthrow.com. Overthrow.com was affiliated with the “American National Socialist Workers Party,” an organization comprised of white supremacists who “fight for white working people” and were “disgusted with the general garbage” that the white supremacist movement had attracted. White used the website to popularize his views concerning “non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race.” On multiple occasions, White advocated that violence be perpetrated on the “enemies” of white supremacy and praised attacks on such enemies.
A repeated topic on his website was Matthew Hale, the leader of a white supremacist organization known as the World Church of the Creator. In January 2003, Hale was charged with soliciting the murder of a federal district court judge and obstruction of justice. Hale was convicted of two counts of obstruction of justice and one count of solicitation and sentenced to 480 months' imprisonment. Specifically related to the Matthew Hale trial, White wrote on his website in March 2005 that “everyone associated with the Matt Hale trial has deserved assassination for a long time.” He also wrote a posting naming individuals involved or related in some way to Hale's conviction, such as federal agents and prosecutors and other citizens advocating for Hale's arrest, stating that any of them may be the next targets of an “unknown nationalist assassin.” White did not publish their personal information in that post because he felt “there is so great a potential for action.”
On September 11, 2008, White posted personal information about the foreperson of the jury in the Hale trial (“Juror A”). At the time of the posting, Overthrow.com was an active website, and as such, each link and posting was contemporaneously accessible. So, a reader of this September 11 posting would have had access to the past posts about Hale, Hale's trial, and other calls for violence against “anti-racists.” The September 11 entry by White was entitled “The Juror Who Convicted Matt Hale.” It identified Juror A by name, featured a color photograph of Juror A and stated the following:
Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at [address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].
On the following day, White posted a follow-up entry entitled “[Juror A] Update-Since They Blocked the first photo.” This posting contained all the same information as above, with the added sentence, “Note that [University A] blocked much of [Juror A's] information after we linked to [his/her] photograph.”
On October 21, 2008, a federal grand jury returned a one-count indictment charging White with soliciting a crime of violence against Juror A, in violation of 18 U.S.C. § 373. On February 10, 2009, the grand jury returned a superseding indictment, maintaining the single charge of solicitation and adding additional examples of the circumstances corroborating the defendant's intent to solicit a crime of violence against Juror A. The superseding indictment charged that:
White moved to dismiss the superseding indictment on the grounds that it violated the First Amendment, and on July 22, 2009, the district court granted White's motion to dismiss. The government timely appealed.
The government argues on appeal that the superseding indictment is legally sufficient to charge the offense of solicitation. We review questions of law in a district court's ruling on a motion to dismiss an indictment de novo. United States v. Greve, 490 F.3d 566, 570 (7th Cir.2007); United States v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988). An indictment is legally sufficient if it (1) states all the elements of the crime charged; (2) adequately informs the defendant of the nature of the charges so that he may prepare a defense; and (3) allows the defendant to plead the judgment as a bar to any future prosecutions. See Fed.R.Crim.P. 7(c)(1); United States v. Smith, 230 F.3d 300, 305 (7th Cir.2000). An indictment is reviewed on its face, regardless of the strength or weakness of the government's case. Risk, 843 F.2d at 1061. One that “tracks” the words of a statute to state the elements of the crime is generally acceptable, and while there must be enough factual particulars so the defendant is aware of the specific conduct at issue, the presence or absence of any particular fact is not dispositive. Smith, 230 F.3d at 305.
Applying these standards, the indictment here is legally sufficient. Title 18 of the United States Code, section 373(a) provides, in pertinent part:
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct.
In a solicitation prosecution, the government must establish (1) with strongly corroborative circumstances that a defendant intended for another person to commit a violent federal crime, and (2) that a defendant solicited or otherwise endeavored to persuade the other person to carry out the crime. 18 U.S.C. § 373(a); see
United States v. Hale, 448 F.3d 971 (7th Cir.2006). A list of non-exhaustive corroborating circumstances of the defendant's intent include whether the defendant repeatedly solicited the commission of the offense, the defendant's belief as to whether the person solicited had previously committed similar offenses, and whether the defendant acquired the tools or information suited for use by the person solicited. United States v. Gabriel, 810 F.2d 627, 635 (7th Cir.1987) (citing S.Rep. No. 97-307, at 183 (1982)).
The indictment here tracks the language of the statute, and lists each element of the crime. It charges White with having the intent for another person to injure Juror A, and soliciting another person to do so. It provides corroborating circumstances of White's intent. As one example of his intent, the government points to the re-posting of the information once action was taken by Juror A's employer to remove his picture from public access. As another, the government argues that White knew the persons solicited were prone to violence. The indictment properly charges a federal solicitation because injuring a juror for rendering a verdict is a federal offense under 18 U.S.C. § 1503. Finally, by adding factual allegations and dates, it makes White aware of the specific conduct against which he will have to defend himself at trial. In judging the sufficiency of this indictment, we do not consider whether any of the charges have been established by evidence or whether the government can ultimately prove its case. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); Smith, 230 F.3d at 305. We only look to see if an offense is sufficiently charged, and on its face, this indictment adequately performs that function.
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