United States v. Rundo
Decision Date | 04 March 2021 |
Docket Number | No. 19-50189,19-50189 |
Citation | 990 F.3d 709 |
Parties | UNITED STATES of America, Plaintiff-Appellant, v. Robert Paul RUNDO; Robert Boman; Tyler Laube; Aaron Eason, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
The United States (hereafter, "the government") appeals from the district court's dismissal of the indictment against Defendants Robert Paul Rundo, Robert Boman, Tyler Laube, and Aaron Eason.1 The Defendants were charged with conspiracy to violate the Anti-Riot Act,2 and Rundo, Boman, and Eason were also charged with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment to the United States Constitution.3 Because the Act is not facially overbroad except for severable portions, we reverse and remand.
The indictment charges that the Defendants are members of the "Rise Above Movement" or "RAM," an organization that represents itself "as a combat-ready, militant group of a new nationalist white supremacy and identity movement." RAM members post videos and pictures online of their hand-to-hand-combat training, often interspersed with videos and pictures of their assaults on people at political events and messages supporting their white supremacist ideology.
Count One of the indictment charged the Defendants with conspiring and agreeing to riot. It alleged that in furtherance of the conspiracy, Rundo, Boman, and Eason recruited new members to join RAM, which conducted combat training to prepare them to commit violent acts at political rallies. The Defendants participated in that combat training and traveled to political rallies in Huntington Beach, California, and Berkeley, California, where they attacked people. Rundo also traveled to a political rally in San Bernardino, California, where he confronted and pursued people. For RAM recruitment purposes, Rundo and Boman posted information about those violent acts on social media.
Count Two of the indictment charged Rundo, Boman, and Eason with aiding and abetting one another in using facilities of interstate commerce (the internet, a telephone, and a credit card) with intent to riot from March 27, 2017, through April 15, 2017, and committing additional overt acts for that purpose. During that time, Eason used a credit card to rent a van and transported Rundo, Boman, and other RAM members to the Berkeley rally. Eason also used text messages to recruit individuals to attend combat training and the rally.
Laube pled guilty to the only charge against him, Count One. The remaining defendants moved to dismiss the indictment. The district court granted their motion and dismissed the indictment based on its conclusion that the Act is facially overbroad. Laube thereafter moved to withdraw his guilty plea and to dismiss the indictment against him for the same reason. The district court granted Laube's motion. This appeal followed.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3731.
We review de novo the dismissal of an indictment on the ground that the underlying statute is unconstitutional. See United States v. Afshari , 426 F.3d 1150, 1153 (9th Cir. 2005).
"[T]he constitutional guarantees of free speech and free press" protect "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio , 395 U.S. 444, 447, 89 S. Ct. 1827, 1829, 23 L. Ed. 2d 430 (1969) (per curiam).4 The Defendants contend that the Act is facially overbroad in violation of the First Amendment because it prohibits advocacy that does not incite an imminent riot.
The Defendants have the burden of establishing from both "the text" language and "actual fact" that the Act is substantially overbroad. Virginia v. Hicks , 539 U.S. 113, 122, 123 S. Ct. 2191, 2198, 156 L. Ed. 2d 148 (2003) (citation omitted). We first construe the provisions of the Act. See United States v. Williams , 553 U.S. 285, 293, 128 S. Ct. 1830, 1838, 170 L. Ed. 2d 650 (2008). "[A] statute is facially invalid if it prohibits a substantial amount of protected speech." Id. at 292, 128 S. Ct. at 1838. However, "[i]nvalidation for overbreadth is strong medicine that is not to be casually employed." Id. at 293, 128 S. Ct. at 1838 (citation and internal quotation marks omitted). Thus, we construe the Act as constitutional if we can reasonably do so. See United States v. Harriss , 347 U.S. 612, 618, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954).5 If there is a constitutional infirmity, we must consider whether the Act is severable and, if so, invalidate only the unconstitutional portions. See New York v. Ferber , 458 U.S. 747, 769 n.24, 102 S. Ct. 3348, 3361 n.24, 73 L. Ed. 2d 1113 (1982).
The Act does have some constitutional defects. However, those defects are severable from the remainder of the Act. Thus, the district court erred when it dismissed the indictment. We will explain.
At its core, the Act states:
18 U.S.C. § 2101(a) – (b).6 It continues:
18 U.S.C. § 2102.7
The Defendants attack the Act on a number of bases: (A) the overt act provisions; (B) the provisions of subparagraphs (1), (2), and (4) of § 2101(a) ; (C) the definition of a riot; and (D) the heckler's veto doctrine. We will now consider each basis. In doing so, we emphasize that our duty is to seek a reasonable construction of the Act that comports with constitutional requirements, so long as the text is "readily susceptible to such a construction." United States v. Stevens , 559 U.S. 460, 481, 130 S. Ct. 1577, 1591–92, 176 L. Ed. 2d 435 (2010) (citation and internal quotation marks omitted); see Harriss , 347 U.S. at 618, 74 S. Ct. at 812.
The Defendants argue that the travel in or use of any facility of interstate or foreign commerce and "any other overt act for any purpose specified in subparagraph [(1), (2), (3), or (4)] of [subsection (a)]" are too far removed in time from any riot to satisfy Brandenburg 's imminence requirement. They liken the "overt act" in the Act to an overt act for a conspiracy. See United States v. Harper , 33 F.3d 1143, 1148 (9th Cir. 1994). However, the Act is not a conspiracy statute. And the travel in or use of a facility of interstate or foreign commerce includes conduct, not just speech. The government argues that the Seventh Circuit Court of Appeals correctly read the references to the somewhat unusual "overt act" language as more limited than the scope envisioned by the Defendants.
We adopt the Seventh Circuit's approach to the "overt act" provisions. See United States v. Dellinger , 472 F.2d 340, 361–62 (7th Cir. 1972). In Dellinger , the court reasoned that the "overt act" provision in § 2101(a) was amenable to two meanings. In the first interpretation, "for any purpose specified" could include speech that was only "a step toward" one of the acts in subparagraphs (1)–(4). Id. at 362. In the second, the words could...
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