US v. McDermott

Decision Date15 March 1993
Docket NumberNo. CR 92-1018.,CR 92-1018.
Citation822 F. Supp. 582
PartiesUNITED STATES of America, Plaintiff, v. William McDERMOTT and Daniel McDermott, Defendants.
CourtU.S. District Court — Northern District of Iowa

Deborah Sines, Maurice Suh, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for plaintiff.

Michael Frey, Simmons, Perrine, Albright & Elwood, Cedar Rapids, IA, for defendant William McDermott.

Thomas O'Flaherty, O'Flaherty Law Firm, Cedar Rapids, IA, for defendant Daniel McDermott.


MELLOY, Chief Judge.

This matter is before the court on the motions of the defendants to dismiss the indictment. The defendants have each filed motions to dismiss the indictment or portions of the indictment arguing that prosecution of this case abridges their rights to freedom of speech under the First Amendment of the United States Constitution. William McDermott requests dismissal of Count 2 of the indictment as well as all overt acts relating to cross-burning in Count 1. Daniel McDermott requests dismissal of the entire indictment. Daniel McDermott also filed a motion to dismiss the indictment on the grounds that the government impermissibly delayed commencing prosecution. William McDermott joined in that motion. The United States of America has resisted all of the motions to dismiss. The following opinion and order denies the defendants' motions to dismiss the indictment.

Statement of the Case

On November 17, 1992, the grand jury returned a two-count indictment against William McDermott and Daniel McDermott ("the McDermotts"). Count 1 charged the McDermotts with conspiracy to injure, oppress, threaten, and intimidate African-American citizens in order to prevent them from enjoying the use of Comisky Park in Dubuque, Iowa, all in violation of 18 U.S.C. § 2411. Count 1 sets forth the overt acts alleged to have been taken in furtherance of the conspiracy which include yelling racial slurs and threats at African-Americans, brandishing weapons at African-Americans, and facilitating the burning of a large wooden cross in Comisky Park on or about the night of April 1, 1988. Count 2 charged the McDermotts with willfully injuring, intimidating, and interfering with African-American persons because of their race and because they had been enjoying the benefit and use of Comisky Park, by force and threat of force consisting of burning a cross, and aiding and abetting the burning of a cross, all in violation of 18 U.S.C. § 245(b)(2)(B) and 18 U.S.C. § 2.2

The parties have filed a number of post-indictment motions in this case, including the defendants' motions to dismiss the indictment. The court held a hearing on all pending motions February 19, 1993. At the hearing, the court ruled on a number of pending motions but reserved ruling on the McDermotts' motions to dismiss the indictment on constitutional grounds and the McDermotts' motions to the dismiss the indictment due to impermissible delay in commencing the prosecution. The following text and order constitutes the court's ruling on these matters.


(1) Motion to Dismiss Under the First Amendment

The McDermotts both argue for dismissal of the indictment in this case on the grounds that the United States Government ("the United States" or "the government") attempts to prosecute them for their alleged participation in expressive conduct protected under the First Amendment of the United States Constitution. William argues that Count 2 of the indictment, which is directed only at allegations they participated in a cross-burning, should be dismissed in its entirety. William also argues that a portion of Count 1 should be dismissed to the extent it alleges cross-burning as a overt act taken in furtherance of the alleged conspiracy to intimidate or threaten African-Americans from using Comisky Park. William, however, acknowledges that the other overt acts alleged in Count 1, racial slurs and brandishing weapons, are not protected by the First Amendment and, therefore, he does not ask for dismissal of the indictment on First Amendment grounds to the extent that it addresses that conduct. Daniel argues that the entire indictment should be dismissed. While the relief they request differs to a small degree, their arguments for dismissal are essentially identical as Daniel has joined the arguments made by William in William's written brief and oral arguments at the hearing. Hence, the court will treat the motions as making the same argument.

The court begins by noting that "in considering a defense motion to dismiss an indictment, the district court accepts as true the factual allegations set forth in the indictment." U.S. v. Besmajian, 910 F.2d 1153, 1154 (3rd Cir.1990) (citing Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n. 16, 96 L.Ed. 367 (1952)); see also United States v. National Dairy Corp., 372 U.S. 29, 33 n. 2, 83 S.Ct. 594, 598 n. 2, 9 L.Ed.2d 561 (1963) (also citing Boyce); U.S. v. Gilbert, 813 F.2d 1523, 1529 (9th Cir.1987) (applying same standards to First Amendment challenge to an information). With these considerations in mind, the court turns to the constitutional arguments of the parties.

The McDermotts assert that cross-burning is expressive conduct which should be treated as speech under the First Amendment. They acknowledge that the relevant statutes, 18 U.S.C. § 241 and 18 U.S.C. § 245(b)(2)(B), are not on their face directed at cross-burning or any other specific message protected by the First Amendment. Instead, the McDermotts argue that these facially neutral statutes are being applied to them in this case to punish them for engaging in activity which is entitled to protection under the First Amendment.

The McDermotts argue that the government's interest in applying these statutes against them is to suppress their freedom of expression. Moreover, they assert that the alleged cross-burning occurred in a public park, which is considered a traditional public forum for free speech. Given these factors, the McDermotts contend that the government's application of these statutes against them must be subjected to the strictest scrutiny available under First Amendment standards. Under those strict standards, the McDermotts argue that the government's application of the statutes against them is impermissible under the First Amendment.

The McDermotts also have argued that 18 U.S.C. §§ 241 & 245(b)(2)(B) are impermissibly vague or overly broad under First Amendment principles. At the hearing, however, they acknowledged that these were secondary arguments and their primary argument focusses on the application of the statutes to them.

The United States argues that there is no First Amendment problem with the indictment and that dismissal on constitutional grounds is not warranted. The government contends that the indictment is aimed at threats and intimidation which are not protected forms of speech under the First Amendment. The government asserts that both sections 241 and 245(b)(2)(B) require the government to prove that the actions which are the subject of the indictment were undertaken by the McDermotts with the specific intent to threaten or intimidate African-Americans from exercising their rights to use the park (§ 241) or because they had used or were using the park (§ 245). The government asserts that this specific intent requirement avoids any potential First Amendment problems because it makes the government prove with specificity that it is aiming at conduct (threats and intimidation in this case) which does not fall under the protections of the First Amendment.

The government also opposes the McDermotts' attempt to characterize sections 241 and 245(b)(2)(B) as overly broad or unnecessarily vague. The government asserts that the specific intent requirement of each statute prevents it from being overly broad or unnecessarily vague. The government asserts that the statutes are limited in reach to behavior which is specifically intended to be threatening or intimidating and, therefore, it cannot be overbroad. Likewise, the government contends that the statutes give notice that conduct in any form which is specifically intended to threaten or intimidate could fall within the statute and, therefore, the statute cannot be unconstitutionally vague.

(A) First Amendment Right to Free Speech

The First Amendment to the United States Constitution states, "Congress shall make no law ... abridging the freedom of speech...." The freedom of speech provided under the First Amendment is a broad, but not absolute freedom. U.S. v. Buttorff, 572 F.2d 619, 623 (8th Cir.1978) (citing Whitney v. Calif., 274 U.S. 357, 373, 47 S.Ct. 641, 647, 71 L.Ed. 1095 (1927) (Brandies, J., concurring)). The Supreme Court has developed an intricate set of tests to determine what speech is and is not subject to regulation under the First Amendment.

A leading commentator on constitutional law has observed that analysis of free speech questions under the First Amendment generally follows a "two track" approach corresponding to the two ways which governments can abridge free speech. L. Tribe, American Constitutional Law § 12-2, pp. 789-94 (2nd Ed.1988) (hereinafter "Tribe"). The first way government can abridge free speech is with regulations aimed at "communicative impact." Id. at 790. The second way government can abridge free speech is with regulations aimed at "`noncommunicative impact' but nonetheless have adverse effects on communicative opportunity." Id. "If a government regulation is aimed at the communicative impact of an act" the analysis should proceed on what Professor Tribe calls track one. Id. Likewise, if the "regulation is aimed at the noncommunicative impact of an act" the analysis should proceed on what he characterizes as track two. Id. at 792.

The track one analysis often is referred to as strict scrutiny. Under strict scrutiny, the government has the burden of demonstrating either that the regulation falls in one of the narrow...

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