Nos. 98-1024 and 98-6523
In the Supreme Court of the United States
OCTOBER TERM, 1998
MARTIN KING, PETITIONER
v.
UNITED STATES OF AMERICA
ALFRED SMITH AND EUGENE SMITH, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney General
DENNIS J. DIMSEY
LISA J. STARK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether 18 U.S.C. 844(h)(1) (1994), which at the time of petitioners'
offenses established a mandatory minimum term of five years' imprisonment
for any person who "uses fire or an explosive to commit any felony
which may be prosecuted in a court of the United States," such penalty
to run consecutive to any other term of imprisonment, was properly applied
to a conspiracy under 18 U.S.C. 241 (1994) to burn crosses in order to threaten
or intimidate individuals in their exercise of rights secured by federal
law.
2. Whether petitioners' convictions violated their rights under the First
Amendment.
In the Supreme Court of the United States
OCTOBER TERM, 1998
No. 98-1024
MARTIN KING, PETITIONER
v.
UNITED STATES OF AMERICA
No. 98-6523
ALFRED SMITH AND EUGENE SMITH, PETITIONERS
v.
UNITED STATES OF AMERICA
ON PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
The opinion of the court of appeals (98-1024 Pet. App. 1-4) is not reported,
but the judgment is noted at 161 F.3d 5 (Table).
JURISDICTION
The judgment of the court of appeals was entered on July, 17, 1998. The
petitions for a writ of certiorari were both filed on October 15, 1998.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial, petitioners were convicted of conspiracy to threaten
or intimidate persons in the exercise of their federally protected rights,
in violation of 18 U.S.C. 241;1 using fire to commit a felony (here, the
civil rights conspiracy), in violation of 18 U.S.C. 844(h)(1); and intimidation
of and interference with persons because of their race and their occupation
of a dwelling, in violation of 42 U.S.C. 3631(a). Each petitioner was sentenced
to the mandatory minimum term of five years' imprisonment for his violation
of 18 U.S.C. 844(h)(1).2 For the other offenses, petitioner King was sentenced
to an additional 12 months' imprisonment, petitioner Alfred Smith was sentenced
to an additional 21 months' imprisonment, and petitioner Eugene Smith was
sentenced to an additional 120 months' imprisonment. The court of appeals
affirmed. 98-1024 Pet. App. 1-4.
1. Petitioners lived in a rural area in Haywood, North Carolina. Gordon
Cullins, an African-American male, and Hazel Sutton, a white female, lived
together across the street from petitioners. Petitioners were unhappy about
the presence of a mixed-race couple in the neighborhood. Petitioners decided
to burn crosses on the front lawn of Cullins and Sutton in order to frighten
the couple so that they would move from the area. Petitioners Alfred Smith
and King tied rags and poured kerosene on the crosses. Petitioners drove
the crosses to the victims' home, where they planted and ignited the crosses
on the front lawn. When Cullins and Sutton returned to their home, they
found the crosses smoldering on the lawn. Petitioners and others were across
the street shouting racial slurs and threats. 98-1024 Pet. App. 3.
2. The court of appeals affirmed petitioners' convictions and sentences
on all three counts. 98-1024 Pet. App. 1-4. Relying on its prior decision
in United States v. Wildes, 120 F.3d 468 (4th Cir. 1997), cert. denied,
118 S. Ct. 885 (1998), the court held that 18 U.S.C. 844(h)(1) applies to
cross-burnings that violate 18 U.S.C. 241. 98-1024 Pet. App. 3-4. The court
explained that "§844(h)(1) contain[s] clear and unambiguous language"
encompassing "an offense of any kind that is punishable by a term of
imprisonment for more than one year." Id. at 4 (quoting Wildes, 120
F.3d at 470). Therefore, the court held, "the phrase 'any felony' as
used in §844(h)(1) . . . includes conspiracy to violate civil rights
by burning a cross." 98-1024 Pet. App. 4 (quoting Wildes, 120 F.3d
at 470).
Petitioners also contended that their convictions pursuant to Section 844(h)(1)
violated their First Amendment rights. Because petitioners had not raised
that argument in the district court, the court of appeals stated that the
claim was "not reviewable * * * absent plain error or fundamental miscarriage
of justice." 98-1024 Pet. App. 4. The court of appeals held that petitioners
had not satisfied that standard and accordingly affirmed the convictions
and sentences. Ibid.
ARGUMENT
The decision of the court of appeals is correct and does not warrant review
by this Court. The Court has twice denied petitions for certiorari presenting
the question whether Section 844(h)(1) applies to cross-burnings that are
prosecuted as felonies under 18 U.S.C. 241. The first time a petition was
filed, the United States suggested that the Court grant certiorari to resolve
the conflict between the Seventh Circuit's decision in United States v.
Hayward, 6 F.3d 1241 (1993), cert. denied, 511 U.S. 1004 (1994), and that
of the Eighth Circuit in United States v. Lee, 935 F.2d 952, 958 (1991),
vacated in part on other grounds, 6 F.3d 1297 (1993), certs. denied, 511
U.S. 1035 and 1046 (1994). The Court denied the petitions in both Hayward
and Lee. Last Term, the Court denied another petition for certiorari in
a case presenting the same question. United States v. Wildes, 120 F.3d 468,
469-471 (4th Cir. 1997), cert. denied, 118 S. Ct. 885 (1998). There is no
reason to reach a different result in the instant case.3
1. Petitioners argue (98-1024 Pet. 4-8; 98-6523 Pet. 4-8) that Congress
did not intend Section 844(h)(1) to apply to cross-burnings that violate
18 U.S.C. 241. Section 844(h)(1), however, unambiguously covers the criminal
conduct for which petitioners were convicted.
The starting point for analysis of a statute has always been the plain meaning
of the text. When "the words of a statute are unambiguous, * * * this
first canon is also the last." Connecticut Nat'l Bank v. Germain, 503
U.S. 249, 254 (1992) (quoting Rubin v. United States, 449 U.S. 424, 430
(1981)). "When Congress uses well-settled terminology of criminal law,
its words are presumed to have their ordinary meaning and definition."
Salinas v. United States, 118 S. Ct. 469, 476 (1997).
a. In United States v. Gonzalez, 520 U.S. 1 (1997), the Court construed
the requirement in 18 U.S.C. 924(c) that a term of imprisonment imposed
for a violation of that Section shall not run concurrently with "any
other term of imprisonment." The Court interpreted that provision to
apply to state as well as federal terms of imprisonment. The Court explained
that "[r]ead naturally, the word 'any' has an expansive meaning, that
is, 'one or some indiscriminately of whatever kind.'" 520 U.S. at 5.
Because "Congress did not add any language limiting the breadth of
that word," the Court found "no basis in the text for limiting
§ 924(c) to federal sentences." Ibid. The Court further observed
that "[g]iven the straightforward statutory command, there is no reason
to resort to legislative history." Id. at 6.
Section 844(h)(1) is similarly unambiguous. By its terms, it criminalizes
the use of fire to commit "any felony which may be prosecuted in a
court of the United States." Restriction of Section 844(h)(1) to a
subset of federal felonies is inconsistent with Congress's use of the word
"any" and with this Court's decision in Gonzalez. Even assuming
that Congress in enacting Section 844(h)(1) did not focus on that Section's
potential application to civil rights conspiracies (see 98-1024 Pet. 6;
98-6523 Pet. 6), Congress employed language that unambiguously covers those
crimes.
b. Petitioners contend (98-1024 Pet. 9-15; 98-6523 Pet. 8-13) that they
did not "use[] fire * * * to commit" the underlying felony-i.e.,
the violation of 18 U.S.C. 241-because the civil rights conspiracy was completed
when they entered into the agreement. That claim is without merit.
Count One of the indictment in this case charged petitioners with conspiring
to "threaten and intimidate" their victims by "burn[ing]
crosses in front of [their] mobile home." 98-1024 Pet. App. 14. The
indictment specified that "[i]n furtherance of the conspiracy and to
accomplish its objectives * * * [petitioner] Alfred Smith * * * set the
crosses on fire." Id. at 14-15. Because petitioners do not dispute
the sufficiency of the evidence (98-1024 Pet. 2; 98-6523 Pet. 2) or claim
that they could have achieved the object of their agreement without igniting
the crosses, they "use[d] fire * * * to commit" the underlying
civil rights violations.
The fact that petitioners could have violated the civil rights conspiracy
statute simply by agreeing to ignite the crosses, without actually carrying
that plan into effect, does not dictate a contrary conclusion. Conspiracy
is an ongoing offense that "continues as long as the conspirators engage
in overt acts in furtherance of their plot." Toussie v. United States,
397 U.S. 112, 122 (1970). This Court has held that a conspiracy offense
may be prosecuted in any district where an overt act in furtherance of the
conspiracy took place, even under a statute (the Sherman Act) that does
not require the performance of an overt act as an element of the offense.
See United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 224-225 n.59,
252-253 (1940). That holding necessarily implies a determination that the
offense of conspiracy is "committed" in every place where an overt
act occurs. See U.S. Const. Art. III, § 2, Cl. 3; U.S. Const. Amend.
VI. In the instant case, petitioners' burning of the crosses furthered their
plan and was essential to achieving its objective. The court of appeals
therefore correctly held that petitioners "use[d] fire * * * to commit"
the conspiracy offense.4
c. Petitioners' reliance (98-1024 Pet. 8; 98-6523 Pet. 8) on the rule of
lenity is misplaced. As this Court noted in United States v. Wells, 519
U.S. 482 (1997), "[t]he rule of lenity applies only if, after seizing
everything from which aid can be derived, [the Court] can make no more than
a guess as to what Congress intended." Id. at 499 (citations, ellipsis,
and internal quotation marks omitted). Because petitioners used fire in
the commission of the predicate civil rights offenses, and because those
offenses are felonies prosecutable in courts of the United States, petitioners'
conduct is covered by the unambiguous language of Section 844(h)(1).
2. Petitioners contend (98-1024 Pet. 15-18; 98-6523 Pet. 13-16) that the
application of 18 U.S.C. 844(h)(1) to this case violated their First Amendment
rights. Because petitioners failed to present that argument to the district
court, the court of appeals correctly held that the claim was reviewable
only for "plain error or fundamental miscarriage of justice."
98-1024 Pet. App. 4. Application of the plain error standard would make
this case an unsuitable vehicle for resolution of the question presented
even if that question otherwise warranted this Court's review. In any event,
petitioners' First Amendment claims are wholly without merit.
Section 241 does not prohibit all expressions of racial animus; it applies
to conspiracies "to injure, oppress, threaten, or intimidate any person
* * * in the free exercise or enjoyment of any right or privilege secured
to him by the Constitution or laws of the United States." 18 U.S.C.
241. It is well established that the First Amendment does not protect threats
and intimidation. See R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)
("threats of violence are outside the First Amendment"); Rankin
v. McPherson, 483 U.S. 378, 386-387 (1987) ("a statement that amounted
to a threat to kill the President would not be protected by the First Amendment").
Cf. Boos v. Barry, 485 U.S. 312, 325-329 (1988) (suggesting that a federal
statute prohibiting activity undertaken to "intimidate, coerce, threaten
or harass" a foreign official satisfied the First Amendment).5 Because
petitioners disavow any challenge to the sufficiency of the evidence (see
98-1024 Pet. 2; 98-6523 Pet. 2) and do not contest the propriety of the
instructions given to the trial jury, application of Section 241 to this
case creates no risk of suppression of constitutionally protected expressive
conduct.
Petitioners contend (98-1024 Pet. 17-18; 98-6523 Pet. 15-16) that Section
844(h)(1) is unconstitutional as applied to this case because its effect
is that threats communicated through the use of fire will be punished more
severely than purely verbal threats. That argument is without merit. While
the burning cross may be the harbinger of further violence, it is also dangerous
in its own right, for fires do not act predictably. The fire set for the
purpose of intimidating the victim may ultimately burn down the neighborhood.
Congress reasonably determined that felonies (including the threats and
intimidation proscribed by Section 241) should be regarded as particularly
blameworthy when they are accomplished through the use of fire, with its
attendant destructive potential. Even in the rare case where fire is employed
as a means of communicating a message, its use poses serious dangers separate
and distinct from its communicative element. Application of Section 844(h)(1)
to petitioners' conduct therefore does not impermissibly punish them "based
on the mode of their expression" (98-6523 Pet. 15). Compare Wisconsin
v. Mitchell, 508 U.S. 476, 483 (1993) ("Violence or other types of
potentially expressive activities that produce special harms distinct from
their communicative impact are entitled to no constitutional protection")
(brackets and ellipsis omitted).
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney General
DENNIS J. DIMSEY
LISA J. STARK
Attorneys
JANUARY 1999
1 Section 241 establishes criminal penalties of up to ten years' imprisonment
in cases where "two or more persons conspire to injure, oppress, threaten,
or intimidate any person * * * 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."
2 At the time of the criminal conduct involved in this case, Section 844(h)
required that any person who "uses fire or an explosive to commit any
felony which may be prosecuted in a court of the United States * * * shall,
in addition to the punishment provided for such felony, be sentenced to
imprisonment for 5 years but not more than 15 years." 18 U.S.C. 844(h)
(1994). Section 844(h) was amended in 1996, see Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, Tit. VII, § 708(a)(3)(A),
110 Stat. 1296, to provide that such persons should receive a mandatory
term of 10 years' imprisonment. 18 U.S.C. 844(h) (Supp. II 1996). Both before
and after the 1996 amendment, Section 844(h) has required that the applicable
term of imprisonment run consecutively to any other term of imprisonment,
including the term imposed for the underlying felony.
3 A petition for a writ of certiorari has also been filed in Hartbarger
v. United States, No. 98-6559, which presents the same issue. The government
filed its brief in opposition to that petition on December 21, 1998.
4 Like the petitioners in this case, the defendants in Hayward argued that
"[s]ince the federal felony of conspiracy, under 18 U.S.C. § 241,
is complete at the time that the agreement is made, the use of fire in the
case at bar gives no vitality to the commission of the conspiracy. The fire
was not an aid in formulating the agreement." 6 F.3d at 1248 n.9. The
court of appeals in Hayward declined to address the argument because it
had not been raised in the district court. Ibid. Petitioners cite no decision,
and we are aware of none, holding that fire cannot be used to commit a conspiracy
offense.
5 See also, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 484-486 (1993) (noting
that the Court has repeatedly rejected First Amendment challenges to federal
and state statutes prohibiting discrimination on the basis of race and sex);
Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984) ("acts of
invidious discrimination * * * are entitled to no constitutional protection");
Runyon v. McCrary, 427 U.S. 160, 176 (1976) ("the Constitution places
no value on discrimination") (ellipsis omitted).