United States v. Thomas Gillen

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 23, 2022
• Docket: 19-4553
• Status: Unpublished

Opinion

USCA4 Appeal: 19-4553 Doc: 67 Filed: 09/23/2022 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4553

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS WALTER GILLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:18-cr-00025-NKM-JCH-3)

Submitted: July 25, 2022 Decided: September 23, 2022

Before KING, DIAZ, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: David A. Eustis, EUSTIS & GRAHAM, PC, Charlottesville, Virginia, for Appellant. Daniel P. Bubar, Acting United States Attorney, Laura Day Rottenborn, Assistant United States Attorney, Lee Brett, Third Year Intern, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

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PER CURIAM:

Thomas Walter Gillen appeals his conviction after entering a conditional guilty plea

to conspiracy to violate the Anti-Riot Act, 18 U.S.C. §§ 2101–02, in violation of 18 U.S.C.

§ 371, and reserving the right to appeal the district court’s denial of his claim that the Anti-

Riot Act is unconstitutional. We previously held this appeal in abeyance for our decision

in the appeals of his co-defendants. See United States v. Miselis, 972 F.3d 518 (4th Cir.

2020). In his brief filed after Miselis, Gillen contends that the Anti-Riot Act is facially

overbroad in violation of the First Amendment and unconstitutionally vague in violation

of the Fifth Amendment; and it is unconstitutional as applied to his case. We affirm.

We review Gillen’s claims de novo. Id. at 525. In Miselis, we held the Anti-Riot

Act is not unconstitutionally vague under the Due Process Clause of the Fifth Amendment,

but it is substantially overbroad under the modern incitement test of Brandenburg v. Ohio,

395 U.S. 444 (1969) (per curiam), “insofar as it encompasses speech tending to ‘encourage’

or ‘promote’ a riot under 18 U.S.C. § 2101(a)(2), as well as speech ‘urging’ others to riot

or ‘involving’ mere advocacy of violence under 18 U.S.C. § 2102(b).” Id. at 525–26, 544–

47.

We further held the statute comports with the First Amendment “[i]n all other

respects”; and the discrete instances of overbreadth could be severed from the

constitutionally valid remainder. Id. at 526, 542, 547. Finally, we affirmed the defendants’

convictions because “their own substantive offense conduct—which involves no First

Amendment activity—falls under the Anti-Riot Act’s surviving applications.” Id. at 526.

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After the severance in Miselis, the four elements for a violation of the Anti-Riot Act

are: (1) traveling in or using any facility of interstate commerce; (2) with intent either to

(a) incite, (b) organize, participate in, or carry on, (c) commit any act of violence in

furtherance of, or (d) aid and abet any person in inciting, participating in, carrying on, or

committing any act of violence in furtherance of; (3) a riot; and (4) performing or

attempting to perform any other overt act for any of the foregoing purposes, either during

the course of any such travel or use or thereafter. Id. at 534, 542–43.

The elements for a conspiracy under 18 U.S.C. § 371 are: (1) an unlawful agreement

between two or more people to commit a crime; (2) knowing and willing participation in

the conspiratorial endeavor; and (3) an overt act committed in furtherance of the

conspiracy. United States v. Camara, 908 F.3d 41, 46 (4th Cir. 2018). The overt act may

be committed by the defendant or a co-conspirator. See Salinas v. United States, 522 U.S.

52, 65 (1997); United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502, 516 (4th

Cir. 2005).

In support of his facial challenge, Gillen makes the same arguments his co-

defendants made in Miselis, but he also asserts an as-applied claim. While Gillen’s co-

defendants did not raise an as-applied challenge, we noted “in the overbreadth context, the

‘usual judicial practice’ is to determine that the statute ‘would be valid as applied’ to the

challenger’s own conduct before proceeding to a facial challenge premised on the

hypothetical conduct of others ‘unnecessarily.’” Miselis, 972 F.3d at 531 (quoting Bd. of

Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484–85 (1989)). We then concluded

“the Anti-Riot Act pose[d] no constitutional concern as applied to” the Miselis defendants;

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and none of their overbreadth theories, “including those we [had] rejected, provide[d] any

basis for an as-applied challenge on the facts to which they [had] stipulated.” Id. at 548.

We have reviewed the record and Gillen’s arguments on appeal, and we similarly

conclude that the Anti-Riot Act “is ‘plainly legitimate as applied’” to his conduct. Id. at

531 n.4. While Gillen claims he did not personally commit violent acts at the riots in

Charlottesville, Virginia, he admitted that he did attack a protestor in Berkeley, California.

He attended combat-training events and rallies with fellow members of the Rise Above

Movement (RAM) to prepare for, and with the intention of, provoking violent

confrontations with counter-protestors. When he traveled to Charlottesville to attend the

Unite the Right rally, he expected that either he or fellow RAM members would commit

violent acts. In Charlottesville, he and fellow RAM members wrapped their hands with

athletic tape to prevent injuries to their hands when they punched someone. And RAM

members committed violent acts in furtherance of a riot in Charlottesville.

As we concluded for Gillen’s co-defendants in Miselis, “[s]uch substantive offense

conduct qualifies manifestly as ‘commit[ting] any act of violence in furtherance of a riot’

within the ordinary meaning of § 2101(a)(3), as well [as] ‘participat[ing] in’ and ‘carry[ing]

on a riot’ within the ordinary meaning of § 2101(a)(2)—three wholly conduct-oriented

purposes left unscathed by our partial invalidation of the statute.” Id. at 547. “By the same

token, [Gillen’s offense has] manifestly nothing to do with speech tending to encourage,

promote, or urge others to riot; mere advocacy of violence; or any other First Amendment

activity; as the district court properly found.” Id.

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While Gillen argues his specific conduct implicates a “‘heckler’s veto,’” we find

this argument without merit. See United States v. Rundo, 990 F.3d 709, 719–20 (9th Cir.

2021). “Simply put, knowing that some might choose to become violent is not at all the

same as intending that they do so.” Id. at 720.

We therefore conclude that the Anti-Riot Act is not unconstitutional as applied to

Gillen’s conduct.

As for his facial arguments, we reaffirm our holdings in Miselis, where we have

already rejected the same arguments Gillen makes here.

Finally, as we did in Miselis, we affirm Gillen’s conviction because his stipulated

conduct involves no First Amendment activity and falls under the Anti-Riot Act’s

surviving applications.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED