United States v. Rundo

Decision Date04 March 2021
Docket NumberNo. 19-50189,19-50189
Citation990 F.3d 709
Parties UNITED STATES of America, Plaintiff-Appellant, v. Robert Paul RUNDO; Robert Boman; Tyler Laube; Aaron Eason, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

PER CURIAM:

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.

BACKGROUND

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.

JURISDICTION AND STANDARD OF REVIEW

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).

DISCUSSION

"[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.

I. Most of the provisions of the Act are reasonably construed as constitutional

At its core, the Act states:

(a) Whoever travels in interstate or foreign commerce or uses any facility of interstate or foreign commerce, including, but not limited to, the mail, telegraph, telephone, radio, or television, with intent–
(1) to incite a riot; or
(2) to organize, promote, encourage, participate in, or carry on a riot; or
(3) to commit any act of violence in furtherance of a riot; or
(4) to aid or abet any person in inciting or participating in or carrying on a riot or committing any act of violence in furtherance of a riot;
and who either during the course of any such travel or use or thereafter performs or attempts to perform any other overt act for any purpose specified in subparagraph (A), (B), (C), or (D) of this paragraph–
Shall be fined under this title, or imprisoned not more than five years, or both.
(b) In any prosecution under this section, proof that a defendant engaged or attempted to engage in one or more of the overt acts described in subparagraph (A), (B), (C), or (D) of paragraph (1) of subsection (a) and (1) has traveled in interstate or foreign commerce, or (2) has use of or used any facility of interstate or foreign commerce, including but not limited to, mail, telegraph, telephone, radio, or television, to communicate with or broadcast to any person or group of persons prior to such overt acts, such travel or use shall be admissible proof to establish that such defendant traveled in or used such facility of interstate or foreign commerce.

18 U.S.C. § 2101(a)(b).6 It continues:

(a) As used in this chapter, the term "riot" means a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual or (2) a threat or threats of the commission of an act or acts of violence by one or more persons part of an assemblage of three or more persons having, individually or collectively, the ability of immediate execution of such threat or threats, where the performance of the threatened act or acts of violence would constitute a clear and present danger of, or would result in, damage or injury to the property of any other person or to the person of any other individual.
(b) As used in this chapter, the term "to incite a riot", or "to organize, promote, encourage, participate in, or carry on a riot", includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.

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.

A. Overt act provisions

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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