United States v. Jonathan David Brown

49 F.3d 1162

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 11, 1995
• Docket: 92-6546
• Status: Published

Opinions

MARTIN, J., delivered the opinion of the court, in which ENSLEN, D.J., joined. BATCHELDER, J. (pp. 1169-1178), ' delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Circuit Judge.

Jonathan David Brown appeals his jury conviction for one count of being an accessory after the fact to a conspiracy to violate civil rights, in violation of 18 U.S.C. §§ 3 and 241, and for two counts of making false declarations before a grand jury, in violation of 18 U.S.C. § 1623. On appeal, Brown argues that he could hot be an accessory after the fact because there was no underlying offense against the United States. For essentially the same reason, he argues that his convictions for perjury cannot stand. Finally, he challenges the validity of a search that was executed at his home, but does so by claiming error in the district court’s denial of his motion to return seized property. We disagree with Brown’s contentions and affirm his conviction.

This case stems from the drive-by shooting of a synagogue in Nashville, Tennessee. On June 9, 1990, Damion Patton, a juvenile “skinhead” as described by the Nashville Police, and Leonard William Armstrong, the Grand Dragon of the Tennessee White Knights of the Ku Klux Klan, met Brown at. a meeting of white supremacist groups which advocated the hatred of Jewish people. Early on the morning of June 10, around 1:00 a.m., Patton and Armstrong drove by the West End Synagogue in Nashville, which another “skinhead” had been accused of defacing a year earlier by spray-painting a swastika on it. As Patton drove by the synagogue, Armstrong fired several shots into the synagogue with a “Tech 9mm” assault pistol.' Due to the early hour, no one was present in the synagogue or injured. However, a member of the synagogue described the effect of the shooting as shocking, intimidating, and perceived as life-threatening. Evidence at trial established that Brown assisted Patton in evading the authorities.

After the shooting, Patton returned to his apartment, where he was arrested later that morning as police broke up an all-night party and confiscated an “AKS-47” rifle. Patton was released the next day into Brown’s custody and went to live at Brown’s farm in Pleasantville. However, Brown told police that Patton would live at Brown’s Nashville apartment as he was about to be evicted from his own. One week later, Brown went to the farm and told Patton that the FBI was looking for him. Brown purchased spray paint and helped Patton paint his car — the one used during the shooting — from white to black. He then provided Patton with a license plate from one of his trucks and cash to help Patton flee the state. Brown later wired additional funds to Patton in Las Vegas. Approximately five months after leaving, Patton returned to Brown’s farm and stayed for a month. In September 1991, the FBI located Patton, who pled guilty to federal charges relating ito the synagogue shoofr-ing.

As part of their ongoing investigation of the shooting, members of the Nashville Metro Police Department had spoken with Brown. On June 12, 1990, after Patton had been released into his custody, Brown told Sergeant Wynn that Patton was living with him until Patton returned to California to live with his father. Based on this information, a federal magistrate in Nashville issued a search warrant for Brown’s apartment. Special Agent Dillender of the FBI prepared the affidavit for the search warrant. Dillen-der was assigned to investigate a number of criminal civil rights incidents in Nashville, including the West End Synagogue shooting. The warrant authorized a search of Brown’s apartment for evidence or instrumentalities of these crimes; it was executed on June 15.

On June 19, Brown was subpoenaed to testify before a federal grand jury investigating the synagogue shooting. He testified that Patton lived with him for a few days after his arrest, sleeping on the floor, before going to California. He also testified that the last time he had spoken with Patton was the day before the FBI came to his apartment looking for Patton. One year later, Brown again appeared before a grand jury regarding the vandalism of religious property. Brown testified, truthfully this time, that after the first hearing, Patton did not go to California; instead, a few days later, Patton went to live and work at Brown’s farm. Also, Brown testified that when he saw. Patton again, Patton had spray painted his car.

Brown appeared- before the grand jury a third time on December 10, 1991. The United States maintains that Brown was invited to attend by letter, which advised him that he was a possible defendant in the grand jury’s investigation of a shooting into the West End Synagogue. He was advised of his rights in the letter, and again at the beginning of the hearing. He was also told that if he lied to the grand jury, he could be charged with perjury. Nevertheless, when specifically asked whether he painted Patton’s car or provided Patton with a license plate, Brown responded that he had not.

On April 22, 1992, Brown was charged in a three-count indictment with perjury and as an accessory after the fact. Count I alleged that he violated 18 U.S.C. § 3 .(1988) by attempting “to prevent the apprehension, trial and punishment” of Armstrong and Patton, when he knew they had committed an offense against the United States. That offense was identified as a conspiracy in violation of 18 U.S.C. § 241 “to injure, oppress, threaten and intimidate Jewish inhabitants and citizens of the United States .in the free exercise and enjoyment of the right, secured to them by the Constitution and laws of the United States, to hold and use real and personal property in the same manner as that right is enjoyed by all citizens, by firing gunshots into the West End Synagogue.” 18 U.S.C. § 241 (1988 & Supp. V 1993), The perjury allegations, Counts II and III, stemmed from Brown’s testimony before the grand jury on December 10, 1991. On August 20, 1992, after an eight-day jury trial, Brown was convicted on all counts. He was sentenced on November 12 to imprisonment for two years and three months, three years’ supervised release with special conditions, and was assessed a $10,000 fine. Brown filed a timely notice of appeal the same day.

Brown argues that his convictions should be reversed because the West End Synagogue is owned by a corporation and not by citizens; He reasons that because the synagogue property was not held by a citizen, there could be no violation of 42 U.S.C. § 1982 (1988), which enumerates the property rights of citizens. Thus, he asserts that Patton’s and Armstrong’s actions were not a crime under federal law to which he could be convicted as- an accessory after the fact. As to Counts II and III, Brown argues that his perjury convictions cannot stand for the same reason, asserting that the United States fraudulently overreached the grand jury’s purpose to generate and sustain an improper inquiry.

I.

To establish a conspiracy to interfere with civil rights, the United States must prove that the defendant knowingly joined a conspiracy to injure, oppress, threaten or intimidate a victim with the intent to deprive him of a civil right and that an overt act was committed in furtherance of the conspiracy. 18 U.S.C. § 241 (1988 & Supp. V 1993); Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The United States need-not prove that-the defendant actually knew it was a constitutional right being conspired against or violated. United States v. O’Dell, 462 F.2d 224, 232 n. 10 (6th Cir.1972). Because the victims in this case, the Jewish members of the West End Synagogue, do not own the synagogue, the central question in this case is whether their right to “use” property free from racial discrimination is a protected civil right.

The .underlying offense to which Brown is an accessory was a conspiracy between Patton and Armstrong to intimidate citizens of the Jewish faith in their right, pursuant to Section 1982, to hold and use real property for worship in the same manner as used by all citizens. Brown argues that the “use” of property is not protected by Section 1982, only the right to “hold” property. He further argues that a citizen must own property in order to be denied the right to hold property. This reading of the statute does not comport with the broad construction courts have traditionally given Section 1982. We agree instead with United States v. Greer, 939 F.2d 1076, 1091 (5th Cir.1991), aff'd en banc, 968 F.2d 433 (5th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993), where the Fifth Circuit rejected an identical argument regarding the defacement and vandalism of a Jewish synagogue and community center in Texas. In reaching our decision in this case, we conclude that Section 1982 must be construed broadly to encompass the “use” of property.

Section 1982 protects the right of citizens to “hold” real and personal property. It states:

All citizens of the United States shah have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Section 1982 was enacted to enable Congress to enforce the Thirteenth Amendment, specifically to “prohibit all racial discrimination, private and public, in the sale and rental of property.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968). In Jones, the court looked to the legislative history of Section 1982 — the debates surrounding the Civil Rights Act of 1866 — and explained that Section 1982 was intended to do more than destroy the discrimination embodied by the Black Codes: “It would affirmatively secure for all men, ... the ‘great fundamental rights.’ ” Id. at 432, 88 S.Ct. at 2199 (quoting Cong.Globe, 39th Cong., 1st Sess., 475). Included among these “basic civil rights” were the right to acquire property and the right “to go and come at pleasure.” Id. In passing the Civil Rights Act of 1866, Congress assumed “that it was approving a comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act.” Id. at 435, 88 S.Ct. at 2201.

Although specifically aimed at “racial” discrimination, “definitions of race when § 1982 was passed were not the same as they are today.” Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617, 107 S.Ct. 2019, 2022, 95 L.Ed.2d 594 (1987) (citing Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)). Section 1982 “was ‘intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.’ ” Id. (quoting Saint Francis, 481 U.S. at 613, 107 S.Ct. at 2028). The question before the court was “not whether Jews are considered to be a separate race by today’s standards, but whether, at the time § 1982 was adopted, Jews constituted a group of people that Congress intended to protect.” Id. The court answered this question in the affirmative and found “that Jews ... were among the peoples then considered to be distinct races and hence within the protection of the statute.” Id. at 617-18, 107 S.Ct. at 2022; see also Jews for Jesus v. Jewish Comm. Rel. Council of N.Y., 968 F.2d 286, 291 (2d Cir.1992) (discussing Shaare Tefila and Saint Francis); Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1261 (7th Cir.1990) (noting that “historically the term [‘race’] was used much more broadly, to denote groups having common ancestry or even a common culture,” and in this “traditional loose sense,” “Jews are members of a distinct race.”); cf. Bisciglia v. Kenosha Unified School Dist. No. 1, 45 F.3d 223, 229-30 (7th Cir.1995) (holding that “Italians” may be considered an identifiable “race” for purposes of a claim of racial discrimination under Section 1981).

The legislative history therefore supports the proposition that a Jewish person’s “use” of property is protected under Section 1982. Further support can be found in City of Memphis v. Greene, 451 U.S. 100, 101 S.Ct. 1584, 67 L.Ed.2d 769 (1981). There, the court similarly gave a broad construction to Section-1982, although ultimately it did not find that it had been violated. In Greene, the City of Memphis blocked the street to a black neighborhood for supposedly neutral reasons including traffic control. Id. at 104, 101 S.Ct. at 1588-89. Although the court found that the right to acquire and use property was not significantly impaired, it elaborated on the scope of Section 1982. “To effectuate the remedial purposes of the statute, the Court has broadly construed this language to protect not merely the enforceability of property interests acquired by black citizens but also their right to acquire and use property on an equal basis with white citizens.” Id. at 120, 101 S.Ct. at 1597 (emphasis added).

Relying on Greene, 451 U.S. at 120, 101 S.Ct. at 1596-97, and Jones, 392 U.S. at 421-22, 88 S.Ct. at 2193-94, the Fifth Circuit in Greer held that “the phrase ‘to hold’ property under the statute can also mean ‘to use’ property. In this way, the government is able to establish that members and nonmembers of the temple and community center, such as guests, could claim that the acts of defendants violated their right to use this property.” Greer, 939 F.2d at 1091. Thus, the court concluded that the “use” of property is a protected civil right. We adopt its reasoning. Here, Jewish citizens were unquestionably denied their right to use property free from racial discrimination. Jewish citizens who were members of the synagogue testified that they were intimidated in their use of the synagogue.

Greer is not alone in finding that property rights other than ownership are protected by Section 1982. Members of the West End Synagogue may properly be considered to be guests or invitees when they attend the synagogue. The Second Circuit has held that guest status is an interest which Section 1982 may protect. In Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1337-38 (2d Cir.1974), a private swim club changed its rules for allowing guests, so that, non-member black children would no longer be permitted at the pool. The Second Circuit found that “[w]hile the condition of being a guest is not normally considered a ‘property’ right one can ‘hold,’ there is authority and justification for considering it such under [Section] 1982.” Id. at 1339 (emphasis added). Further, the court concluded that it was reasonable to characterize the freedom to go and come as guests as “sufficiently pertaining to a condition of property to be a right capable of being held under [Section] 1982.” Id.

Upon being invited by a member of the club, a black child becomes an invitee of that member with certain rights pursuant thereto. Whether these rights are denominated licenses, easements or usufructs, the guest has an interest in his guest status which the law may protect from certain invasions.

Id. (citation omitted) (emphasis added). If guest status at a private swim club is a protected interest under Section 1982, then certainly the right to “go and come at pleasure” to one’s place of worship is as well.

“Our work would certainly be much easier if every case could be resolved by consulting a dictionary, but when Congress has legislated in general terms, judges may not invoke judicial modesty to avoid difficult questions.” Holder v. Hall, — U.S. —, —, 114 S.Ct. 2581, 2629, 129 L.Ed.2d 687 (1994) (Stevens, J., concurring). We agree with Greer and Olzman that non-owners of property who nevertheless have an interest in using or holding that property have a viable property interest protected under Section 1982.

II.

Brown next challenges his conviction for perjury. Section 1623 provides in pertinent part that “[w]hoéver under oath ... in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 1623(a). Brown had testified before the grand jury twice before he gave the testimony on which the perjury counts are based. He appeared before the grand jury on June 19, 1990, and on June 19, 1991. Three months after his second appearance, Patton and Brown’s brother testified and contradicted Brown’s earlier testimony. Brown concedes for purposes of his appeal that his statements before the grand jury on December 10, 1991, were false. Brown argues, however, that his perjury conviction is nonetheless invalid because no citizen held the West End Synagogue property. He claims the United States knew this fact, but maintained otherwise before the grand jury. Thus, Brown argues, the United States overreached the grand jury’s purpose “to generate and sustain an improper inquiry” and any false declarations made were material only to that improper inquiry. Brown also asserts that the United States set a “perjury trap” by inviting him to testify before the grand jury again on December 10.

Given our analysis of Section 1982, and our, conclusion that Patton’s and Armstrong’s actions constituted a federal crime under 18 U.S.C. § 241, Brown’s first argument is without merit. A federal grand jury has jurisdiction to investigate conduct that might have been a federal crime and that occurred within the jurisdiction of the federal court convening it. United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.1979), cert. denied, 445 U.S. 962, 100 S.Ct. 1649, 64 L.Ed.2d 237 (1980). Because the conduct being investigated was a federal crime, the grand jury’s inquiry here was proper. Further, Brown’s argument that the United States engaged in prosecutorial misconduct through a “perjury sting operation” is likewise unavailing.

When testimony is elicited before a grand jury that is “attempting to obtain useful information in furtherance of its investigation”, United States v. Devitt, 499 F.2d 135, 140 (7th Cir.1974), cert. denied, 421 U.S. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466 (1975), or “conducting a legitimate investigation into crimes which had in fact taken place within its jurisdiction”, United States v. Chevoor, 526 F.2d 178, 185 (1st Cir.1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976), the perjury trap doctrine is, by definition, inapplicable.

United States v. Chen, 933 F.2d 793, 797 (9th Cir.1991). Thus, we find Brown’s challenge unpersuasive. The grand jury had jurisdiction to investigate Brown’s conduct, and the United States did not set a “peijury trap.”

III.

Finally, Brown argues that the June 15,1990, search of his apartment violated his Fourth Amendment rights, although he states this by claiming error in the district court’s denial of his motion to return the seized property. He asserts that because the search warrant focused on Patton and his activities, the executing officers conducted an impermissible general search by seizing Brown’s personal property. He takes particular offense at the fact that his bedroom and closet were searched, and these are not areas where a “guest” might be expected to be found. Brown reads the warrant as authorizing a search only for Patton and his property, rather than for evidence of the crimes committed. However, this contention is without merit. The warrant application and affidavit make clear that its scope included evidence of specific crimes by Patton and others, on the premises then occupied by Patton. Moreover, a warrant may authorize searching property regardless of whether the owner of that property is implicated in the misconduct. Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-77, 56 L.Ed.2d 525 (1978).

On June 15, 1990, a federal magistrate in Nashville issued two search warrants in connection with this investigation: one authorizing a search of Brown’s apartment, specifying the address as “902 Cedar Pointe Parkway,” and the other authorizing a search of Damion Patton. Special Agent Dillehder applied for both warrants and each application refers to her affidavit in describing the basis for probable cause and the items sought. Each warrant issued also refers to Dillen-der’s affidavit as establishing probable cause. Special Agent Dillender and Sergeant Wynn were both present during the execution of these warrants.

Although the dissent argues that these warrants are insufficient to meet the constitutional requirement of particularity, such is not the case. The first search warrant provided for a search “on the premises” of Brown’s apartment, and specified his address. The second warrant authorized a search of and for Damion Patton’s person. On June 12, 1990, only three days prior to the warrants’ issuance, Brown told Sergeant Wynn .that Patton was living with him after being released from custody. The knowledge of the executing officers in this case is a factor which may cure any insufficiencies in the search warrant’s description of the premises. United States v. Williamson, 1 F.3d 1134, 1136 (10th Cir.1993). Furthermore, “when one of the executing officers is the affiant who describes the property to the judge, and the judge finds probable cause to search the property as described by the affi-ant, and the search is confined to the areas which the affiant described, then the search, in this case, is in compliance with the fourth amendment.” United States v. Gahagan, 865 F.2d 1490, 1499 (6th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 590 (1989).

Brown also challenges the seizure of his personal property indicating membership in the Ku Klux Klan and other white supremacist groups. He argues that seizing such items requires executing the search with “scrupulous exactitude” because of First Amendment concerns. Still, Brown has not shown that the search and seizure was improper. The publications and papers set forth in the search warrant affidavit are limited to those concerning the identification of targets of skinhead and Klan activities. Furthermore, in stating why those items are relevant to the crimes charged, the affidavit is far more specific than other warrants struck down on this ground. See Stanford v. Texas, 379 U.S. 476, 482, 85 S.Ct. 506, 510, 13 L.Ed.2d 431 (1965) (holding that warrant authorizing search of private home for all books, records, and other materials relating to the Communist party was too broad); United States v. Apker, 705 F.2d 293 (8th Cir.1983) (striking down warrants that sought only indicia of Hell’s Angels membership), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984). When considered in light of his relationship to Patton and Armstrong, Brown’s seized personal property implicated him in the crimes being investigated. Moreover, even evidence “not described in a search warrant may be seized if it is ‘reasonably related to the offense which formed the basis for the search warrant.’ ” United States v. Fortenberry, 860 F.2d 628, 636 (5th Cir.1988) (quoting United States v. Munroe, 421 F.2d 644, 646 (5th Cir.), cert. denied, 400 U.S. 851, 91 S.Ct. 79, 27 L.Ed.2d 89 (1970)); see also United States v. Korman, 614 F.2d 541, 547 (6th Cir.) (stating that evidence or instrumentalities of crime may be seized even though not specifically listed in the search warrant), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980).

Therefore, for the foregoing reasons, Brown’s conviction is AFFIRMED on all three counts.