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

610 F.3d 956

UNITED STATES of America, Plaintiff-Appellant,
v.
William WHITE, Defendant-Appellee.

No. 09-2916.

United States Court of Appeals,
Seventh Circuit.

Argued Jan. 12, 2010.
Decided June 28, 2010.
Rehearing Denied Aug. 6, 2010.

610 F.3d 956

William E. Ridgway, Attorney (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

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Nishay K. Sanan, Attorney (argued), Chicago, IL, for Defendant-Appellee.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

PER CURIAM.

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.

I. BACKGROUND

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

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[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:

2. From on or about September 11, 2008, through at least on or about October 11, 2008, in the Northern District of Illinois, Eastern Division, and elsewhere, WILLIAM WHITE, defendant herein, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of force against the person of Juror A, in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicited and otherwise endeavored to persuade such other person to engage in such conduct; in that defendant solicited and otherwise endeavored to persuade another person to injure Juror A on account of a verdict assented to by Juror A, in violation of Title 18, United States Code Section 1503.

3. It was part of the solicitation, inducement, and endeavor to persuade that on or about September 11, 2008, defendant WILLIAM WHITE caused to be displayed on the front page of “Overthrow.com” a posting entitled, “The Juror Who Convicted Matt Hale.”

...

5. The above-described solicitation, inducement, and endeavor to persuade occurred under the following circumstances, among others, strongly corroborative of defendant WILLIAM WHITE's intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of force against the person of Juror A....

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.

II. ANALYSIS A. Indictment Valid on Its Face

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

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the crime is generally acceptable, and while there must be enough factual particulars so the...