United States v. Dennis C. Pospisil ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-2729
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United States of America, *
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Appellee, *
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v. *
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Dennis C. Pospisil, *
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Appellant. *
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Appeals from the United States
No. 98-2731 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Appellee, *
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v. *
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Barney L. Pospisil, Jr., *
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Appellant. *
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Submitted: April 23, 1999
Filed: August 9, 1999
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Before WOLLMAN1 and LOKEN, Circuit Judges, and JACKSON,2 District Judge.
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WOLLMAN, Chief Judge.
Dennis C. Pospisil (Dennis) and his brother Barney L. Pospisil, Jr. (Barney) were
convicted under 18 U.S.C. § 241 of conspiring to violate civil rights as a result of their
involvement in a cross burning in Rushville, Missouri. Dennis was also convicted of
interfering with housing rights in violation of 42 U.S.C. § 3631 and of using a firearm
during a crime of violence in violation of 18 U.S.C. § 924(c). Both men appeal their
convictions and sentences. We affirm in part and reverse in part.
I.
On August 15, 1997, Liza Costa and her three children, ages 13, 11, and 7,
moved into a home in Rushville. Mistakenly believing that the Costas were African-
American,3 Dennis, Devin Peck, and Ted Fenton made a plan to lead a caravan around
the Costas’ home and burn a cross in their yard to scare them out of town.
On August 22, 1997, Dennis welded metal pipe into the shape of a cross and
sharpened the base of the cross to a point. Dennis then took the cross to Barney,
explained that they wanted to burn it “in the niggers’ yard,” and asked if he had
something to wrap around the cross to make it flammable. Barney said he would “take
care of it.” He directed his ex-girlfriend to wrap the cross in towels, and he secured the
1
Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
2
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri, sitting by designation.
3
The Costas are of Cape Verdean ancestry, which Ms. Costa described as
“Portuguese but of a darker nature.” Trial Tr. at 300.
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towels in place with wire. Barney then returned the cross to Dennis and agreed to meet
him at 10:00 p.m. at the volunteer fire station, where the group was to meet and
proceed to the Costa home.
When Dennis arrived at the fire station, he was wearing a .22 caliber revolver
in a shoulder holster. Dennis, Peck, and Fenton took turns pouring gasoline on the
cross. When Barney arrived, Dennis called the group together for a “town meeting.”
Approximately twenty people were present, including at least seven minors. Dennis
talked about “niggers” moving into the community and urged the crowd to join in
running them out of town. Barney stood directly beside Dennis, remarked that whites
needed to stand up to “niggers,” and gave a speech about “white power.” When some
of the young people indicated that they did not wish to participate in the attack on the
Costas, Dennis and Barney shouted epithets at them and threw rocks and beer cans as
they left the gathering.
After this episode, Barney suggested to Dennis that it was not a good night for
the cross burning because too many people knew of the plan. Dennis said that he
would burn the cross while Barney and the rest of the group went to Dennis’s home.
Dennis, Peck, and one of the minors then proceeded to the Costa home. With his
revolver still displayed in his shoulder holster, Dennis stuck the cross in the front yard
and lit it. Peck slashed the tires of the Costas’ vehicle. They circled the Costa home
in their vehicle, and Dennis fired several shots into the air as they drove away.
Dennis and Barney were indicted for conspiring to violate civil rights under 18
U.S.C. § 241 and for interfering with housing rights under 42 U.S.C. § 3631. Dennis
was also indicted for using a firearm during a crime of violence in violation of 18
U.S.C. § 924(c). Dennis was convicted on all three counts and sentenced to 144
months’ imprisonment. Barney was convicted of conspiring to violate civil rights and
sentenced to thirty-seven months’ imprisonment. In this consolidated appeal, they raise
some claims jointly and some individually.
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II.
Both defendants raise the following claims of error: the district court’s grant of
the government’s Batson challenge; the sufficiency of the evidence demonstrating an
intent to threaten physical violence; the court’s denial of their motion for a mistrial
based on improper prosecutorial comments; and the court’s imposition of two-level
sentencing enhancements because the Costas were vulnerable victims.
A.
The defendants claim that the district court erred when it found that their
peremptory strikes of two African-American venire persons violated Batson v.
Kentucky, 476 U.S. 79 (1986). See Georgia v. McCollum, 505 U.S. 42, 59 (1992)
(recognizing that Batson prohibits both prosecutors and defendants from using
peremptory strikes in a discriminatory manner). Specifically, they claim that they had
a race-neutral reason for the strikes. We review for clear error the district court’s
finding that this reason was a pretext for intentional discrimination. See Gee v. Groose,
110 F.3d 1346, 1351 (8th Cir. 1997).
The defendants’ race-neutral reason for the strikes was that the venire persons
had heard news accounts of the cross burning and were government employees in some
capacity. The district court found this pretextual, however, because Caucasians with
similar experiences were not struck. Furthermore, defense counsel admitted during voir
dire that “race was a factor” in making the strikes because African-Americans would
“have a difficult time with this case and would[] identify with Miss Costa.” Trial Tr.
at 206-07. Nothing in the record leads us to conclude that the district court’s finding
of pretext was clearly erroneous.
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In the alternative, the defendants ask us to carve out an exception to Batson for
cases involving “race-related issues.” We decline to do so. The Supreme Court
“firmly has rejected the view that assumptions of partiality based on race provide a
legitimate basis for disqualifying a person as an impartial juror.” McCollum, 505 U.S.
at 59. In cases that involve racially motivated crimes, counsel may question venire
persons about race-related bias and strike them if there is specific reason to believe that
they “would be incapable of confronting and suppressing their racism.” Id. at 58. In
this case, the defendants attempted to base their strikes on an assumption of partiality
based on race rather than comments by the venire persons that demonstrated racism.
Accordingly, we affirm the district court’s grant of the government’s Batson challenge.
The defendants also dispute the timeliness of the government’s challenge and
argue that the court should have declared a mistrial rather than seating the two African-
Americans because the jury was given the impression that the defendants were racist.
The record shows, however, that the government raised the challenge as soon as it
learned of the defendants’ peremptory strikes. In addition, the decision whether to
declare a mistrial is within the sound discretion of the district court. See Miller v.
United States, 135 F.3d 1254, 1256 (8th Cir. 1998). No abuse of that discretion
occurred here.
B.
Next, the defendants challenge the sufficiency of the evidence showing that they
intended to threaten the Costas with physical violence. The jury was instructed not to
convict under 18 U.S.C. § 241 without a finding that “the defendant acted with the
intent to threaten . . . the Costa family with physical force or violence, to incite others
to imminent lawless action, or to cause . . . the Costa family reasonably to fear the
imminent use of physical force or violence.” Jury Instruction No. 11, Appellee’s Br.
at Add. 2. This instruction was consistent with instructions mandated by our decisions
involving prosecutions for cross burning under section 241. See United States v. Lee,
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6 F.3d 1297, 1304 (8th Cir. 1993) (en banc) (per curiam); United States v. J.H.H., 22
F.3d 821, 826 (8th Cir. 1994).
In Lee, the defendants stated that they burned the cross to “‘make a statement,
. . . to leave our kids alone’” and “to do something about ‘the people that (sic) lived
upstairs.’” 6 F.3d at 1303. The victims in that case testified that they were afraid and
“understood that a burning cross meant that ‘white people were trying to get rid of the
blacks.’” Id. at 1303-04. We held that such statements by perpetrators and victims
were sufficient evidence of an intent to threaten violence to present the case to the jury.
Id. In J.H.H., the defendants’ convictions under section 241 were upheld based on
statements that they burned the crosses to “send a message to the . . . family to move
out” and “to threaten and to intimidate the African-American family.” 22 F.3d at 827.
Here, Dennis said “the only good nigger is a dead nigger” as he constructed the
cross. Barney replied, “[I’m not] prejudiced, [I think] everybody ought to own [an
African-American].” At the fire station, Dennis talked about “white supremists (sic)
and how the niggers had no right being in our town” and urged the crowd to join in
“running the niggers out of town.” Barney “backed his brother up” and encouraged the
crowd to “stick against the niggers.” At trial, Dennis testified that the purpose of the
cross burning was to “send a strong message and scare [the Costas] so they would
move out of town.”
In addition to the overwhelming evidence of the defendants’ intentions, Costa
testified that she and her children felt physically threatened by the cross burning. After
seeing Dennis’s weapon and observing the perpetrators’ vehicle circle her home, Costa
“was worried about getting shot.” Her children had nightmares, stopped sleeping in
their rooms, and began checking the house for intruders. Costa worried that the cross
burners would return to hurt her children and interpreted the cross burning to mean
“that I should get out of town, that there would be more to come if I didn’t heed their
warning.” In light of Lee and J.H.H., this was sufficient evidence for the jury to
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conclude that the defendants intended to threaten the Costas with physical violence in
violation of section 241.
C.
Both defendants claim that the district court erred by denying their motion for
a mistrial when the government asked a witness at trial whether he had visited the
defendants “in prison.” We review the court’s ruling on the motion for an abuse of
discretion. See Miller, 135 F.3d at 1256. Generally, a curative instruction will
adequately remedy improperly admitted testimony. See id. (citing United States v.
Flores, 73 F.3d 826, 831 (8th Cir. 1996)).
In this case, defense counsel objected to the government’s statement as soon as
it was made. The court sustained the objection and adopted the following curative
instruction, which was proposed by Dennis:
Ladies and gentlemen, you should disregard and draw no inference from
anything that [government counsel] said about contact this witness might
have had with any of the defendants. None of the defendants are in prison
and none of them have been convicted of any offense related to August
22, 1997.
Appellee’s Br. at 26. We see no indication in the record that this instruction was
ineffective. It clearly stated that the defendants were not in prison and had not been
convicted of any crime related to the cross burning. Accordingly, the district court did
not abuse its discretion in denying the motion for mistrial.
D.
Both defendants also argue that the district court erred in increasing their base
offense levels by two on the basis of a finding that the Costas were vulnerable victims.
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See U.S.S.G. § 3A1.1(b)(1). Specifically, the defendants claim that they targeted the
Costas because of their race, which was the basis for a three-level increase under
section 3A1.1(a), not because they were vulnerable. The Guidelines, however, no
longer require a showing that victims were targeted because they were vulnerable to
warrant an increase under section 3A1.1(b)(1). Rather, the sentencing court may
impose the increase “if ‘the defendant knew or should have known that a victim . . .
was unusually vulnerable due to age, physical or mental condition, or that a victim was
otherwise particularly susceptible to the criminal conduct.’” United States v. Cain, 134
F.3d 1345, 1351 (8th Cir. 1998) (quoting U.S.S.G. § 3A1.1(b)(1), comment. (n.2)).
The record shows that Dennis referred to the Costas as “little niglets.” The
district court correctly concluded that this demonstrated Dennis’s knowledge that
young children resided at the Costa home. See Dennis’s Sentencing Tr. at 10-11. In
addition, the court noted that the victims were particularly vulnerable because they
were new in town, another fact of which Dennis was aware. Accordingly, the court did
not clearly err in finding that Dennis knew that the Costas were vulnerable victims and
increasing his base offense level by two.
With regard to Barney, however, the court did not find that he used the term
“niglet,” that that term was used in his presence, or that he was aware that the Costas
had just moved to Rushville. Upon applying the two-level increase to Barney’s base
offense level, the court simply stated, “I am going to be consistent in my legal findings
as to vulnerability of the victims. I think these were 3A1.1(b) vulnerable victims.” The
court did not find that Barney knew or should have known that the Costas were
vulnerable, as section 3A1.1(b)(1) explicitly requires, nor does the record contain
evidence that would support such a finding. Accordingly, we reverse the court’s
imposition of the two-level increase in Barney’s base offense level.
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III.
Dennis raises three additional claims individually. He argues that the district
court erred in denying his motion to sever his trial, that there was insufficient evidence
to support his conviction for “use” of a firearm under 18 U.S.C. § 924(c), and that the
court erred in sentencing him as a “leader or organizer.”
A.
Dennis moved to sever after the government introduced evidence that Barney
abused his ex-girlfriend and owned a sign with the phrase “Official Runnin’ Nigger
Target.”
To warrant reversal of the denial of the severance motion, Dennis must show that
this evidence caused him “real prejudice.” See United States v. Lara, 891 F.2d 669,
671 (8th Cir. 1989). In admitting the evidence, the court instructed the jury to consider
it only with respect to Barney and not the other defendants. See Trial Tr. at 474-75
(the sign), 506-07 (the abuse). Limiting instructions are generally sufficient to prevent
real prejudice. See Lara, 891 F.2d at 672. Dennis has no basis for his assertion that
the jury was unable to compartmentalize the evidence against Barney. Thus, the
district court did not abuse its discretion in denying the motion.
B.
Dennis contends that there was insufficient evidence that he “used” a firearm in
relation to the cross burning in violation of 18 U.S.C. section 924(c). In Bailey v.
United States, the Supreme Court acknowledged that “use” is not simply a synonym
of “possess.” See 516 U.S. 137, 148 (1995). Rather, Congress intended “use” to
mean “actively employ.” Id. “The active-employment understanding of ‘use’ certainly
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includes brandishing, displaying, bartering, striking with, and, most obviously, firing
or attempting to fire a firearm.” Id.
Dennis does not dispute that he displayed his revolver in plain view in a shoulder
holster during the cross burning. Nor does he contest that he actually fired shots into
the air as he rode away from the scene of the crime. His claim that the firearm played
no part in the crime is directly contradicted by Costa’s testimony that she was “worried
about getting shot” after she noticed the gun and observed the perpetrators circling her
home. There can be no doubt that the display of the firearm during the cross burning
added to the threatening and intimidating nature of the act. Accordingly, there was
sufficient evidence to support the jury’s finding that Dennis used a firearm in violation
of section 924(c).
Dennis also claims that his conviction under 42 U.S.C. § 3631 cannot be a
predicate offense for section 924(c) because the verdict form on the section 3631 count
did not mention violence or the use of fire. The jury instruction on the section 3631
count, however, explicitly required the jury to find that Dennis’s conduct “involved the
use or attempted use of fire.” Jury Instruction No. 17, Dennis’s Br. at Add. 13. The
section 3631 conviction was therefore a conviction for a “crime of violence” and thus
a proper predicate offense under section 924(c).
C.
Dennis claims that the court clearly erred in finding him a “leader or organizer”
of extensive criminal activity under section 3B1.1(a) of the Sentencing Guidelines.
There was evidence in the record, however, that Dennis built the cross, led the meeting
at the fire station, and actually burned the cross in the Costas’ yard. It is undisputed
that the criminal activity involved at least five participants. Accordingly, the district
court’s imposition of the four-level increase was not clearly erroneous.
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IV.
Barney also raises several sentencing issues independently. He argues that the
jury was required to make a special finding that he selected the victims because of their
race, that the district court erred in finding that he recruited minors to participate in the
crime, and that the court erred in finding that he did not have a “minor role” in the
crime.
A.
Section 3A1.1(a) of the Sentencing Guidelines allows a four-level increase if
“the finder of fact at trial . . . determines beyond a reasonable doubt that the defendant
intentionally selected any victim . . . because of . . . race.” Barney argues that the jury
was required to make a special finding to that effect for the district court to impose the
increase under section 3A1.1(a).
Although section 241 is not on its face limited to racially motivated crimes, the
jury instructions on the section 241 count expressly incorporated language about the
race of the victims. See Jury Instructions No. 11-12, Appellee’s Br. at Add. 2-3. The
jury found beyond a reasonable doubt that Barney took part in the conspiracy to
intimidate the Costas or interfere with their rights “on account of their race, color, or
national origin.” Id. This finding provided a sufficient basis for the imposition of the
four-level increase under section 3A1.1(a).
B.
Barney also claims that the court erred in finding that he encouraged minors to
participate in the cross burning and imposing a two-level increase under section 3B1.4.
The evidence showed, however, that Barney gave a speech about “white power” at the
fire station shortly before the cross burning. See Trial Tr. at 352 (Barney said “who
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runs the power lines . . . the whites do”), 613 (“Barney chimed in, white power”), 634
(Barney “said that the white people run the power company and we provide the black
people the light and the power and we don’t need to give them any more than what we
have to”). It is undisputed that minors were present during this speech. The record
also shows that when a group of boys attempted to leave the fire station, Barney threw
a beer can and joined in calling them “nigger lovers” and “pussies.” Accordingly, the
court did not clearly err in finding that Barney encouraged minors to participate in the
offense under section 3B1.4.
C.
Finally, Barney argues that the court erred in denying his request for a two-level
decrease under section 3B1.2(b) for his having played a minor role in the offense.
Although Barney may have played a smaller role in the cross burning than Dennis, there
was evidence in the record that he played a critical part in making the cross flammable
and that he gave a white-power speech to the crowd at the fire station shortly before
the cross burning. Thus, we cannot say that Barney’s involvement was “an isolated
unsubstantial instance.” United States v. Alaniz, 148 F.3d 929, 937 (8th Cir.), cert.
denied, 119 S. Ct. 604 (1998). Further, “the mere fact that the defendant was less
culpable than his co-defendant does not entitle the defendant to ‘minor participant’
status as a matter of law.” United States v. West, 942 F.2d 528, 531 (8th Cir. 1991).
The district court’s denial of the two-level decrease under section 3B1.2(b) was not
clearly erroneous.
Conclusion
Because the record does not establish that Barney knew or should have known
that the Costas were vulnerable victims, we reverse the district court’s increase of his
base offense level under U.S.S.G. § 3A1.1(b)(1), and we remand his case for
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resentencing. We affirm the convictions and sentences for both Barney and Dennis in
all other respects.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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