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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
v. CRIMINAL NO. PJM-95-0148
BRANDON SHELDON,
Defendant
_________________________
GOVERNMENT'S CONSOLIDATED RESPONSE
TO DEFENDANT SHELDON'S PRETRIAL MOTIONS
Comes now the United States of America, through its undersigned
attorneys,
and files this Consolidated Response to Motions filed by Defendant Sheldon.
Pending motions include the following: (1) Motion to Dismiss for Violation
of
First Amendment; (2) Motion to Dismiss for Violation of Petite Policy; (3)
Request for Rule 404(b) Evidence; (4) Motion for Proof of Conspiracy Count;
(5)
Motion for Bill of Particulars; (6) Motion for Disclosure of Confidential
Informant; (7) Motion to Suppress Physical Evidence; and (8) Motion to
Suppress
Statement.
Factual Background
The indictment against Defendant Brandon Sheldon ("Indictment")
charges
that on October 17, 1991, in Upper Marlboro, Maryland, Sheldon violated the
federal housing rights of Joan Bennett, Douglas Monahan and Bennett's three
sons,
and conspired with John Boyd to violate those civil rights. The
government's
evidence at trial will establish the following facts.
In October, 1991, Joan Bennett and Bennett's three sons, Timothy
Hines,
Gregory Hines and John Hines, all African-Americans, lived with Douglas
Monahan,
a white man, at 9201 Armstrong Lane in Upper Marlboro, Maryland. Adjacent
to
their home, separated by a fence, lay a farm belonging to Harry Smith, Jr.
John
Boyd, who worked as a farmhand, lived with his family in a small home on
the
Smith farm.
John Boyd met Defendant Sheldon around September, 1991, through Ku
Klux
Klan member Jeffrey Lloyd. Around this time, Boyd was expressing an
interest in
the Ku Klux Klan, and Lloyd told Boyd he should talk to Sheldon. Sheldon
was
also a member of the Klan; he spoke freely and publicly about his hatred
for
African-Americans, whom he called "niggers," and his opposition to their
living
in the Forestville area. He expressed particular virulence for race
mixing,
referring to racially mixed families as "whiglets" or "white niggers," and
to the
children of racially mixed couples as "niglets" and "zebras." He had the
word
"skins" tattooed on the inside of his lip, and "white power" on his arm.
Shortly after they met, Sheldon began frequenting Boyd's house on the
Smith
farm. On several occasions, Sheldon and Boyd discussed the fact that a
racially
mixed family--Monahan, Bennett and Bennett's sons--lived adjacent to the
Smith
farm on Armstrong lane.
On the evening of October 17, 1991, Sheldon arrived at Boyd's house
with
a video cassette copy of the movie "Mississippi Burning," which Sheldon told
Boyd
he wanted him to see. As Sheldon and Boyd drank beer and watched the film,
Sheldon instructed Boyd as to the significance of the burning cross when the
Ku
Klux Klan uses it against black persons. After watching a scene in the film
in
which the Klan burns a cross near a black family's home and one of the
Klansmen
says, "They know we're here," Sheldon suggested that he and Boyd build a
cross
and burn it where "niggers" would see it; Boyd agreed. Sheldon and Boyd
together
then decided to burn the cross near the home of the racially mixed family
on
Armstrong Lane.
They built the cross, which was approximately five feet tall, in
Boyd's
basement workshop, and carried it outside and loaded it into Sheldon's blue
pick-up truck. They then drove to the Smith barnyard to get a jug of diesel
fuel
and from there drove through the Smith field to Armstrong Lane and stopped
at a
spot near the victims' home. Sheldon stated that he wanted to put the cross
in
the front yard of the Monahan/Bennett home. However, since he and Boyd
could not
think of a way to stick the cross in the ground, they decided, instead, to
lean
the cross against the fence separating the Smith farm from the victims'
yard.
They selected a spot approximately thirty unobstructed feet from the
victims'
front porch. They doused the cross with fuel oil. After placing the cross
against the fence, Sheldon lit the cross. They then ran to Sheldon's truck
and
drove back to Boyd's house.
While Joan Bennett and two of her sons saw the flames from their home,
none
of the victims realized until later that it was a cross which had been
burned.
All of the victims, upon realizing within a couple of days what had
happened,
were frightened and anxious about what might happen next.
Sheldon was arrested on state charges in connection with the Armstrong
Lane
cross-burning on November 7, 1991, pursuant to a warrant issued November 1,
1991.
See Arrest Warrant, attached hereto as Exhibit A. In a search of Sheldon's
person incident to that arrest, police found, among other personal items, a
Ku
Klux Klan card along with another card with the hand-written words "white
power"
and "skinheads" and a drawing of a swastika.
On January 28, 1992, another cross-burning occurred on a hillside
overlooking Branch Avenue in Clinton, Maryland. On the basis of an
affidavit
presented by Lt. Thomas Allinger, of the Prince George's County Fire
Investigation Division, Judge C. Philip Nichols, Jr., of the Circuit Court
for
Prince George's County, Maryland, concluded that probable cause existed to
search
Sheldon's pick-up truck for evidence relating to the Branch Avenue
cross-burning,
and, on February 3, 1992, issued a search warrant. See Application for
Search
Warrant and Search Warrant, attached hereto as Exhibit B. Acting pursuant
to
that search warrant, on February 5, 1992, law enforcement officers
recovered
various items from Sheldon's pick-up truck, including a video cassette copy
of
the film "Mississippi Burning." Also recovered from the truck was a paper
target
bearing a racially offensive caricature purporting to show a silhouette of
the
body of an African-American which included different point scores
for hitting different areas of the body, and bore the caption "Official
Runnin'
NIGGER Target."
As a result of the Armstrong Lane incident, on January 14, 1992, the
State
of Maryland charged Sheldon with unauthorized cross-burning, in violation
of
Maryland Code Art. 27, § 10A. Sheldon was arraigned on that charge on
January 31, 1992. Before the case advanced to trial, however, Sheldon moved
to
dismiss the state indictment, contending that Maryland Code Art. 27, §
10A
was unconstitutional. The Circuit Court for Prince George's County granted
the
motion to dismiss in November, 1992, and in August, 1993, the Maryland Court
of
Appeals affirmed the dismissal of the indictment against Sheldon. The
instant
federal prosecution followed.
Legal Argument
- Defendant's Motion to Dismiss for Violation of the First
Amendment Should be Denied.
- Defendant moves to dismiss the Indictment, contending that Count One,
charging a violation of Title 18, United States Code, Section 241, violates
his
First Amendment right to freedom of expression.[FN1] The Court should deny
this
motion to dismiss, as 18 U.S.C. § 241 is constitutional and does not
violate
the defendant's freedom of expression, and Count I of the Indictment
properly
states an offense against Sheldon.
FN1. Defendant does not challenge the validity of Count II of the
indictment, which charges a violation of 42 U.S.C. § 3631 and 18 U.S.C.
§
2.
- Defendant claims that he is being prosecuted under 18 U.S.C. § 241
because he participated in the act of burning a cross. He further avers,
citing
R.A.V. v. City of St. Paul, ___ U.S. ___, 112 S.Ct. 2538 (1992), that the
Supreme
Court has held that cross burning is a form of protected expression under
the
First Amendment. He thus concludes that his prosecution under 18 U.S.C.
§
241 is unconstitutional. Both premises of the defendant's argument are
false,
and his conclusion is meritless.
- Contrary to the defendant's apparent understanding, he has not been
charged
with burning a cross. Instead, Count One of the Indictment, to which he
directs
his motion, charges him with conspiring "to injure, oppress, threaten and
intimidate" Joan Bennett, Ms. Bennett's sons, and Douglas Monahan, in
violation
of those persons' federally protected fair housing rights.[FN2] Also
contrary
to the defendant's implication, the language of R.A.V. v. City of St. Paul
confirms, rather that rejects, the continuing constitutionality of Section
241
prosecutions against individuals who have the specific intent to use threats
or
intimidation--regardless of form--to interfere with an individual's
enjoyment of
fundamental housing rights. Consequently, the defendant's motion must
fail.
FN2. Count One of the indictment states, in pertinent part, that the
defendant "did willfully conspire and agree to injure, oppress, threaten
and
intimidate Joan Bennett, an African-American woman, her sons, and Douglas
Monahan, a white man...in the free exercise and enjoyment of rights secured
to
them by the Constitution and laws of the United States, that is, the right
to
hold and occupy a dwelling without injury, intimidation or interference
because
of race and color, and the right to associate in that dwelling with persons
of
another race. It was part of the conspiracy to burn a cross near the
dwelling...which was occupied by Joan Bennett, her sons, and Douglas
Monahan, and
thereby to intimidate and to interfere with their rights to occupy their
home,
and freely associate therein with persons of another race."
18 U.S.C. § 241 provides in pertinent part:
If two or more persons conspire to injure, oppress, threaten, or
intimidate
any inhabitant of any State. . . in the free exercise or enjoyment of any
right
or privilege secured to him by the Constitution or laws of the United
States, or
because of his having so exercised the same . . . They shall be [guilty of
an
offense against the United States].
The statute thus specifically prohibits individuals from conspiring to
violate federally protected rights. As the Supreme Court has repeatedly
held,
Section 241 is a valid exercise of congressional authority to enforce all
rights
guaranteed by the Constitution and laws of the United States. See, e.g.,
United
States v. Johnson, 390 U.S. 563 (1968); United States v. Price, 383 U.S.
787
(1966), United States v. Classic, 313 U.S. 299 (1941). In order to violate
Section 241, an individual must specifically intend to violate the federal
right
at issue. United States v. Anderson, 417 U.S. 211, 213 (1974). The
underlying
right in a Section 241 housing prosecution is derived primarily from 42
U.S.C.
§ 1982 which provides:
All citizens of the United States shall have the same right as is
enjoyed by
white citizens to inherit, purchase, lease, sell, hold, and convey real and
personal property.
Defendant Sheldon is charged with violating Section 241 by conspiring
to
threaten, intimidate and interfere with the rights of the victims to hold
and
occupy their home and freely associate therein with persons of another race.
See
Indictment, Count One. Mr. Sheldon now claims, in effect, that because his
chosen method of achieving the charged threats, intimidation and
interference was
to burn a cross near the victims' property, his prosecution pursuant to
Section
241 violates the First Amendment. He rests this dubious contention on
R.A.V. v.
City of St. Paul, 112 S.Ct. 2538. As discussed below, however, R.A.V., as
well
as First Amendment law more generally, sustains rather than impugns the
constitutionality of the Section 241 charge against Mr. Sheldon.
It is well settled, of course, that the First Amendment presumptively
prevents the government from proscribing speech, or even expressive
conduct,
based upon the content of the message conveyed. See, e.g., Texas v.
Johnson, 491
U.S. 397 (1989). It is equally well settled, however, that the government
may
regulate conduct in order to further a legitimate interest unrelated to the
suppression of free expression, even if that regulation tangentially
restricts
an individual's freedom of expression. See, e.g., United States v. O'Brien,
391
U.S. 367, 376 (1968) ("[W]hen 'speech' and 'nonspeech' elements are combined
in
the same course of conduct, a sufficiently important governmental interest
in
regulating the nonspeech element can justify incidental limitations of
First
Amendment freedoms."); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
(rejecting First Amendment challenge to state law prohibiting public nudity
by
establishments wishing to provide nude dancing, as the incidenta
l restriction on the First Amendment is no greater than is essential in
furtherance of the government's legitimate interest in protecting societal
order
and morality).
The Supreme Court illustrated these coexisting principles in Boos v.
Berry,
485 U.S. 312 (1988). There, the Court invalidated on First Amendment
grounds a
District of Columbia law which prohibited displaying, within 500 feet of a
foreign embassy, signs tending to bring into "public odium" or "public
disrepute"
a foreign official or government. Id. at 316-29. The Court contrasted the
D.C.
law with a constitutionally sound federal statute prohibiting any attempts
or
acts, including verbal displays and utterances, intended to "intimidate,
coerce,
threaten, or harass" any foreign official. Id. at 324-27. The Court noted
that,
unlike the D.C. law, the federal statute "is not narrowly directed at the
content
of speech but at any activity, including speech, that has the prohibited
effects." Id. at 326.
R.A.V. v. St. Paul, 112 S.Ct. 2538, does not alter these basic First
Amendment principles; on the contrary, it reinforces them. The defendant
in
R.A.V., who had allegedly burned a cross on a black family's lawn, was
charged
and convicted under a bias-motivated city ordinance which provided:
Whoever places on public or private property a symbol, object,
appellation,
characterization or graffiti, including, but not limited to, a burning cross
or
Nazi swastika, which one knows or has reasonable grounds to know arouses
anger,
alarm or resentment in others on the basis of race, color, creed, religion
or
gender commits disorderly conduct and shall be guilty of a
misdemeanor.
112 S.Ct. at 2541. The Supreme Court reversed the conviction, holding that
the
statute violated the First Amendment. Id. at 2547-50.
Contrary to Defendant Sheldon's assertion, the Court did not hold that
the
conduct with which the defendant in R.A.V. was charged--burning a cross in
the
yard of a black family--was protected by the First Amendment. Indeed, the
Court
noted that conduct could have been punished under a number of other
statutes.
112 S.Ct. at 2541 n.1, 2250.
Instead, the Court declared the ordinance unconstitutional on its face
because, like the D.C. law in Boos v. Berry, 485 U.S. 312, it regulated
expressive conduct based upon the content of the message expressed, rather
than,
for example, prohibiting all communications delivered in a threatening
manner.
Id. at 2547-49. Noting that a content-neutral law, one "not limited to the
favored topics," would have the same beneficial and permissible effect of
prohibiting "fighting words" without offending the First Amendment, the
Court
explained: "[T]he reason why fighting words are categorically excluded from
the
protection of the First Amendment is not that their content communicates
any
particular idea, but that their content embodies a particularly intolerable
(and
socially unacceptable) mode of expressing whatever idea the speaker wishes
to
convey." Id. at 2549-50 (emphasis in original).
In contrast to the ordinance at issue in R.A.V. v. City of St. Paul,
the
plain language of Section 241 does not forbid the free expression of any
particular ideas, viewpoints or messages. Rather, Section 241 is a
content-neutral statute which prohibits conspiring to violate individual
rights
through threatening or injurious conduct, "regardless of the viewpoint
guiding
the action." United States v. J.H.H., 22 F.3d 821, 825 (8th Cir. 1994).
See
also United States v. Lee, 6 F.3d 1297, 1301 (8th Cir. 1993), cert. denied,
114
S.Ct. 1550 (holding that Section 241 is facially neutral); United States v.
Price, 383 U.S. at 800 (holding that the purpose and effect of Section 241
is to
prohibit assaults upon "all of the rights and privileges secured to
citizens by
all of the Constitution and all of the laws of the United States" (emphasis
in
original)). In other words, Section 241 focuses on the mode of expression
without regard to the message expressed, an approach the Supreme Court
expre
ssly approved in R.A.V.. See 112 S.Ct. at 242-50. Accordingly, R.A.V. v.
City
of St. Paul not only does not call into question the constitutionality of
18
U.S.C. § 241; it confirms the statute's validity. See id.; J.H.H., 22
F.3d
at 824-26 (rejecting a First Amendment challenge to a cross-burning
conviction
under 18 U.S.C § 241 and 42 U.S.C. § 3631 and affirming the
constitutionality of both statutes in light of R.A.V. v. City of St. Paul).
Count One of the Indictment, charging a violation of Section 241,
therefore
properly states an offense against Sheldon. Unlike the defendant in
R.A.V. v.
City of St. Paul, Defendant Sheldon has been charged, not because he
expressed
racist views, but because he willfully conspired to threaten and intimidate
a
family attempting to live peacefully in their home, conduct that is not
protected
by the First Amendment. See, e.g., id., 112 S.Ct. at 2546 (noting that
"threats
of violence are outside the First Amendment"); J.H.H., 22 F.3d at 825-27
(same).
In this case, a cross burning was merely the means by which Sheldon intended
to
achieve this prohibited end. The choice of such means cannot serve as a
defense
to the crime. R.A.V. v. City of St. Paul, 112 S.Ct. at 1246-47 ("Where the
government does not target conduct on the basis of its expressive content,
acts
are not shielded from regulation merely because they express a
discriminatory
idea or philosophy.").
In sum, there can be no doubt as to the facial validity of both 18
U.S.C.
§ 241 and Count One of the Indictment, charging Sheldon with a violation
of
Section 241. The Motion to Dismiss on these grounds should therefore be
denied.
To the extent Sheldon contends that the application of Section 241 to the
particular facts of his case is unconstitutional, relying upon United States
v.
Lee, 6 F.3d 1297 (8th Cir. 1993), his argument is obviously premature and
thus
also should be denied. See, e.g., id. (sustaining an "as applied" First
Amendment challenge to a cross-burning conviction under Section 241, based
on a
finding that the jury instructions exceeded the scope of the statute);
United
States v. J.H.H., 22 F.3d at 826-28 (rejecting an "as applied" First
Amendment
challenge to a cross-burning conviction, since the "entire record" supported
the
conclusion that the cross-burnings were intended to threaten or intimidate
the
victims); United States v. McDermott, 29 F.3d 404 (8th C
ir. 1994) (also rejecting an "as applied" First Amendment challenge to a
cross-burning conviction under Section 241, based on a finding that the
jury
instructions were proper). Accordingly, Defendant Sheldon's Motion to
Dismiss
for Violation of the First Amendment should be denied in its entirety.
[cited in
Civil Rights Resource Manual 60]
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