United States v. Sean Allen, United States of America v. Eric Adam Dixon, United States of America v. Jeremiah Skidmore, United States of America v. Jason Guy Potter, United States of America v. Ryan Flaherty, United States of America v. Michael Flom

At around 10:30 p.m. on July 29, 2000, Spring Ramirez, a Hispanic woman, Jason Clark, an African American man, and Pat Tellez, a Hispanic man, were socializing at Pioneer Park, a local park in Billings, Montana, when approximately nine white supremacists who were "patrolling" the park for racial minorities and Jews, surrounded them wielding weapons, berated them with racial epithets, and forced them out of the park for no reason other than their race. A federal grand jury indicted the defendants in this case — Sean Allen ("Allen"), Eric Dixon ("Dixon"), Ryan Flaherty ("Flaherty"), Michael Flom ("Flom"), Jason Potter ("Potter"), and Jeremiah Skidmore ("Skidmore") — with violating 18 U.S.C. §§ 241 and 245(b)(2)(B), statutes that protect against the interference with federally protected rights on the basis of race and religion. The defendants appeal their convictions and sentences.

The principal issues on appeal are whether Pioneer Park is a place of "public accommodation" such that the defendants properly were convicted under § 241 and whether § 245(b)(2)(B) was validly enacted pursuant to Congress's Commerce Clause and Thirteenth Amendment powers. These are issues that we have not addressed in this circuit. In addition, the defendants appeal certain evidentiary rulings at trial, in particular the admission of assertedly prejudicial skinhead evidence, as well as the application of several sentencing enhancements.

We hold that Pioneer Park is a place of public accommodation and that the enactment of § 245(b)(2)(B) was a constitutional exercise of both Congress's Commerce Clause and Thirteenth Amendment powers. We also affirm the district court's evidentiary rulings and sentencing decisions.

In the spring of 2000, Allen, Dixon, Skidmore, Thomas Edelman ("Edelman"), and Jeremiah Johnson ("Johnson") started an organization called the Montana Front Working Class Skinheads ("MFWCS") in Billings, Montana. The MFWCS was a white supremacist, neo-Nazi group, the purpose of which was "to rid the world of all the scum," including racial minorities and Jews, using whatever means it took, including violence. Indeed, the fourteen-word "motto" of the MFWCS was: "We must secure the existence of our people in the future for white children." The members of the MFWCS believed that it was their duty to finish what Hitler started — the killing of millions of racial minorities and Jews — and to be prepared for the RAHOWA, or racial holy war, by remaining armed at all times.

Members of the MFWCS wore a specialized uniform consisting of white tee-shirts, black pants, red suspenders and shoe laces, and black boots, and they shaved their heads. They listened to hate music, read racist literature, and had tattoos consisting of, among other images, swastikas, the "88" ("Heil Hitler") symbol, Hitler, faceless working skinheads, and the "SS" symbol (members earned the "SS" symbol by severely beating non-white persons). Indeed, the MFWCS earned recognition on a retreat at the Aryan Nation compound at Hayden Lake, Idaho, for being the "most uniformed crew there."

Allen, Dixon, and Skidmore, the leaders of the MFWCS, encouraged members, such as Edelman and Johnson, to recruit minors sixteen years of age and older into the group because minors were less likely than adults to go to prison for committing violent acts. As Kevin Cox, a minor who associated with the MFWCS and who participated in the "park patrol" at issue in this case testified, younger guys needed to earn status within the group, which they could accomplish by going out and "causing trouble" because they received less harsh punishments than the elders. Indeed, four minors — Sara Fairchild (Edelman's girlfriend), Dustin Neely, Kevin Cox, and Jason Williams — participated in the July 29, 2000 "park patrol," discussed below.

To gain status within the MFWCS, members were required to earn red suspenders and red shoe laces. Allen, Dixon, and Skidmore told members, including recruits, that they could earn their suspenders ("braces") and laces by physically beating up or harming racial minorities and Jews, and they encouraged members to earn many sets of suspenders and laces. Allen, Dixon, and Skidmore told Edelman, for example, to "Just go clean the town of all scum. You know, clean up our nation." Edelman and Johnson earned their suspenders by beating up a "prairie nigger"1 (Native American).

On July 29, 2000, Allen hosted a barbecue at his house that many members and affiliates of the MFWCS, including Allen, Dixon, Skidmore, Potter, Flaherty, Flom, Edelman, Fairchild, Johnson, Neely, Cox, Williams, and Emily Ehresman (Allen's girlfriend) attended. At the barbecue, the idea of engaging in a "park patrol" was raised.2 The purpose of a "park patrol" was to walk through a park and "clean out all the minorities," if necessary through violence. Allen and Dixon participated in discussions about the "park patrol,"3 but they feared that the participants would go to prison and thus be of no use to the "crew." Allen therefore instructed Edelman and Johnson to be cautious and to keep an eye on the younger participants and on Flaherty, who was not from Billings, had a broken jaw, and had never before participated in a park patrol.

Edelman, Fairchild, Johnson, Flom, Potter, Flaherty, Williams, Cox, and Neely left the barbecue to "patrol" Pioneer Park. They traveled to the park in Johnson's truck, from which they gathered weapons, including axe handles, flat bars, chains, and broomsticks, to use during the patrol. Each participant (except Fairchild) carried a weapon. When they arrived at Pioneer Park at approximately 10:30 p.m., Johnson dropped the participants off at each corner of the park, and they then moved toward the center of the park looking for racial minorities and Jews.

Cox and Neely ran into some white kids, but they left them alone once they learned that they were white. Soon thereafter, Cox, Neely, and the other "park patrol" participants noticed Spring Ramirez, Jason Clark, and Pat Tellez at a table drinking beer. As they approached Ramirez, Clark, and Tellez, the "park patrollers" told them to pick up their cans and not to litter the park. Edelman then told Ramirez, Clark, and Tellez to pick up their stuff and to leave the park immediately. Some of the "park patrollers" then yelled, "What are you doing in the park this late?" Others also chimed in with similar remarks. The two men began to walk away and the "park patrollers" fanned out and followed them, yelling "Get out of the park" as well as racial slurs. The men were told that if they did not leave, they would be removed. The men then dropped their cooler and began to run, and the "park patrollers" (everyone but Fairchild) followed them out of the park and into the street. One man ran into a house and the other ran to the side of the house for safety. Once the men escaped, the group walked back toward the park where they encountered the woman. Flom and others yelled racial slurs at the woman and told her, "We're going to get you. You're going to die." The woman ran into a house for safety. The police arrived at the park soon thereafter.

The day after the "park patrol," Allen, Dixon, and Skidmore "chewed out" Edelman and Johnson for not chasing the man into the house, catching him, and beating him up, and for getting caught by the police.

Allen, Dixon, Skidmore, Potter, Flaherty, and Flom were charged in the District Court for the District of Montana, in a four-count indictment, with violating 18 U.S.C. §§ 241 and 245(b)(2)(B). Specifically, Count I of the Indictment alleged:

From on or about March 1, 2000, until on or about October 30, 2000, in the City of Billings in the State and District of Montana, the defendants Sean Allen, Eric Dixon, Jeremiah Skidmore, Jason Potter, Ryan Flaherty, and Michael Flom along with others known and unknown to the grand jury, willfully combined, conspired, and agreed with one another and others to injure, oppress, threaten, and intimidate African-American, Hispanic, Jewish, and Native American persons in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of the United States, namely the right to the full and equal enjoyment of the services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination on the ground of race, color, religion, and national origin. All in violation of Title 18, United States Code, Section 241.

Counts II through IV of the Indictment each related to a separate victim of the "park patrol" and alleged: On or about July 29, 2000, ... the defendants... aiding and abetting one another, did willfully intimidate and interfere, and attempt to intimidate and interfere with an Hispanic woman, ... by force and threat of force, and the use, attempted use and threatened use of dangerous weapons, because of her race, color, religion, and national origin and because she was participating in or enjoying the benefits, services, privileges, programs, facilities, and activities provided and administered by any State or subdivision thereof, to wit: a public park known as Pioneer Park. All in violation of Title 18, United States Code, Sections 245(b)(2)(B) and 2.

A jury convicted Allen, Dixon, Potter, Flaherty, and Flom on all counts, and convicted Skidmore on Count I.4 Allen and Dixon were sentenced to prison for 120 months on each count, to be served concurrently, and to three years of supervised release on each count, to be served concurrently. Flaherty was sentenced to 41 months in prison on each count, to be served concurrently, and to three years of supervised release on each count, to run concurrently. Flom was sentenced to 51 months on each count, to be served concurrently, and to three years of supervised release on each count, to be served concurrently. Potter was sentenced to 180 months in prison (120 months for Count I and 60 months for Counts II through IV, to run consecutively) followed by three years of supervised release on each count, to be served concurrently. Skidmore was sentenced to 100 months in prison to be followed by three years of supervised release. It is from these convictions and sentences that Allen, Dixon, Skidmore, Potter, Flaherty, and Flom appeal.

We begin by addressing whether Pioneer Park is a place of "public accommodation" and whether Congress validly enacted § 245(b)(2)(B) pursuant to its Commerce Clause and Thirteenth Amendment authority. We then turn to the defendants' challenges to the district court's evidentiary rulings and sentencing decisions.

The defendants first contend that they were wrongfully convicted under 18 U.S.C. § 241 because Pioneer Park was not a place of "public accommodation." We disagree.

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District 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 fined under this title or imprisoned not more than ten years, or both....

18 U.S.C. § 241. Here, the § 241 charge against the defendants was premised on a violation of 42 U.S.C. § 2000a, which states that:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

* * * *

Each of the following establishments which serves the public is a place of public accommodation within the meaning of this subchapter if its operations affect commerce, or if discrimination or segregation by it is supported by State action: ... (3) any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.

42 U.S.C. §§ 2000a(a) & (b)(3).

The defendants contend that (1) Pioneer Park was not a place of "public accommodation" because it did not provide sources of entertainment that affected interstate commerce and (2) their actions in carrying out the "park patrol" did not affect interstate commerce.5 We disagree. The question is not whether the "park patrol" affected interstate commerce, but rather, whether Pioneer Park's operations affected interstate commerce. See 42 U.S.C. § 2000a(b)(3)(stating that an establishment is a place of public accommodation if its "operations affect commerce"). There was ample evidence in the record that they did. Moreover, a "place of exhibition or entertainment" "moves in commerce" if it "customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment." 42 U.S.C. § 2000a(c)(3). There also was ample evidence that Pioneer Park was a place for "performances," "exhibitions," and "other sources of entertainment." For example, (1) playground equipment was purchased from Utah; (2) picnic tables, barbecue grills, and related materials were purchased in Ohio, Iowa, and Utah; (3) out-of-state visitors used the park; (4) national organizations such as the March of Dimes and the American Cancer Society obtained permits to use the park for their events, which attracted out-of-state visitors; (5) Saturday Live, a fundraising event sponsored by the Billings Public School Foundation, which had national sponsors such as Exxon, Pepsi, and the Marriott, was held at the park; (6) the Montana AIDS Vaccine Ride, which used out-of-state coordinators and attracted out-of-state participants, was held at the park; and (7) the Billings Symphony performed at the park and included out-of-state musicians and sound systems.6

In Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969), the Supreme Court considered whether Lake Nixon Club, "a 232-acre amusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar," was a "public accommodation" that "affected commerce" within the meaning of 42 U.S.C. § 2000a. Id. at 301, 305-08, 89 S.Ct. 1697. The Court noted that, although "most of the discussion in Congress regarding the coverage of Title II focused on places of spectator entertainment rather than recreational areas," it "does not follow that the scope of § 201(b)(3)7 should be restricted to the primary objects of Congress's concern when a natural reading of its text would call for broader coverage." Id. at 307, 89 S.Ct. 1697; see also United States v. Baird, 85 F.3d 450, 453 (9th Cir.1996) ("Based upon Daniel, we reject the narrower ejusdem generis construction of `place of ... entertainment' in 42 U.S.C. § 2000a(b)(3) which would limit it to places more like `motion picture house,' etc.") (omission in original); Miller v. Amusement Enters., Inc., 394 F.2d 342, 348, 350 (5th Cir.1968) (en banc) ("We are unable to agree with those concepts which would prefer, or those which would demand, that the Civil Rights Act be narrowly construed... We find that the phrase `place of entertainment' as used in 201(b)(3) includes both establishments which present shows, performances and exhibitions to a passive audience and those establishments which provide recreational or other activities for the amusement or enjoyment of its patrons.").8 "[T]he statutory language `place of entertainment' should be given full effect according to its generally accepted meaning and applied to recreational areas." Daniel, 395 U.S. at 308, 89 S.Ct. 1697 (emphasis added);9 see also Baird, 85 F.3d at 453 (holding that a 7-11 store that contained two video game machines was a "place of entertainment" because "people play video games in order to amuse themselves and pass the time agreeably"); United States v. Greer, 939 F.2d 1076, 1091 n. 15 (5th Cir.1991) ("Under [§ 2000a(a)], public parks are places of public accommodation.");10 Miller, 394 F.2d at 351 (holding that an amusement park was a "place of enjoyment, fun and recreation, and thus [was] a place of entertainment"). In analyzing whether the operations of Lake Nixon Club "affected commerce," the Court considered whether "sources of entertainment" such as paddle boats and a juke box "moved in commerce." Id.

We hold that Pioneer Park was a place of "public accommodation" as defined by 42 U.S.C. § 2000a and that the defendants therefore were properly convicted for violating § 241.11

Allen, Dixon, Flaherty, Flom, and Potter were convicted of violating 18 U.S.C. § 245(b)(2)(B), which states:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with ... any person because of his race, color, religion or national origin and because he is or has been ... participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof... shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both....

18 U.S.C. § 245(b)(2)(B). They challenge their convictions on two grounds. First, they contend that the enactment of § 245(b)(2)(B) was an invalid exercise of Congress's power under the Commerce Clause because the statute regulates noneconomic, intrastate criminal activities that do not affect interstate commerce and that should be regulated by state law.12 Second, the defendants argue that their alleged victims were not "participating in or enjoying any benefit, service, privilege, program, facility or activity" provided by the State because Pioneer Park was closed at the time of the "park patrol." We will address each of these arguments in turn.

Whether 18 U.S.C. § 245(b)(2)(B) was a valid exercise of Congress's Commerce Clause power is an issue we have not addressed in this circuit. The defendants liken § 245(b)(2)(B) to the Gun-Free School Zones Act of 1990 ("the Act"), 18 U.S.C. § 922(q)(1)(A), and the federal civil remedy provision of the Violence Against Women Act ("the VAWA"), 42 U.S.C. § 13981, which the Supreme Court struck down in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), respectively, as invalid exercises of Congress's power under the Commerce Clause. The defendants maintain that their actions in Pioneer Park on July 29, 2000, as well as other activities and events at Pioneer Park, were purely local and did not affect interstate commerce. In contrast, the government contends that the enactment of § 245(b)(2)(B) was a valid exercise of Congress's power under the Commerce Clause, even in light of Lopez and Morrison, and that, alternatively, it was a valid exercise of Congress's authority under the Thirteenth Amendment.

We begin our inquiry with a discussion of Lopez and Morrison, which restrict Congress's authority to regulate non-economic, intrastate activities that do not affect interstate commerce.

In Lopez, the Court considered whether the possession of firearms in a school zone "substantially affected" interstate commerce. The Court delineated three categories of activities that Congress has the power to regulate under the Commerce Clause: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3) "those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." 514 U.S. at 558-59, 115 S.Ct. 1624 (internal citations omitted). It focused its inquiry on the third category of activities—"those activities having a substantial relation to interstate commerce"—and concluded that the possession of firearms in a school zone did not "substantially affect" interstate commerce. Id. at 559, 567, 115 S.Ct. 1624.

The Court reasoned that the Act did not regulate "economic" activity: "Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at 561, 115 S.Ct. 1624. Possession of a firearm in a school zone was not sufficiently related to interstate commerce to be a valid exercise of Congress's Commerce Clause power:

The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.

Id. at 567, 115 S.Ct. 1624. The Court also relied on the fact that the Act contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce," id. at 561, 115 S.Ct. 1624, and on the fact that the Act lacked congressional findings regarding the effect of gun possession in a school zone on interstate commerce, id. at 562-63, 115 S.Ct. 1624.

Relying heavily on Lopez, the Court in Morrison struck down 42 U.S.C. § 13981, a provision of the VAWA that provided a federal civil remedy for victims of gender-motivated violence.13 The Court noted that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to [its] decision in that case." 529 U.S. at 610, 120 S.Ct. 1740. It then concluded that:

Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.

Id. at 613, 120 S.Ct. 1740. The Court was concerned that Congress's regulation, pursuant to its Commerce Clause power, of non-economic, intrastate activities would "completely obliterate the Constitution's distinction between national and local authority." Id. at 615, 120 S.Ct. 1740. It therefore "reject[ed] the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local." Id. at 617-18, 120 S.Ct. 1740.

As in Lopez and Morrison, we are concerned with whether the activities that § 245(b)(2)(B) regulates "substantially affect" interstate commerce. We conclude that they do. "Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison, 529 U.S. at 607, 120 S.Ct. 1740. Indeed, if Congress had a rational basis for concluding that the activities regulated by § 245(b)(2)(B) affected interstate commerce, then we must uphold the statute. See Katzenbach v. McClung, 379 U.S. 294, 303-04, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) ("But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end."); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258-59, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (using a rational basis standard in determining whether Title II of the Civil Rights Act of 1964 was validly enacted under Congress's Commerce Clause power).

The Supreme Court was concerned in Morrison that "Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority." Morrison, 529 U.S. at 615, 120 S.Ct. 1740. The Court emphasized that "[t]he regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States." Id. at 618, 120 S.Ct. 1740. Section 245(b)(2)(B) regulates only a specific type of violence; namely, violence that interferes with federal civil rights on the basis of "race, color, religion or national origin." This is not merely intrastate violence, but rather, violence that affects civil rights, which are traditionally of federal concern. See United States v. Nelson, 277 F.3d 164, 191 n. 28 (2d Cir.) ("[P]rivate violence motivated by a discriminatory animus against members of a race or religion, etc., who use public facilities, etc., is anything but intrinsically a matter of purely local concern."), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002); United States v. Furrow, 125 F.Supp.2d 1178, 1185 (C.D.Cal.2000) ("Far from intruding into a matter of purely local concern, [§ 245] regulates matters that Congress and the courts have recognized as `truly national.'"). In its congressional findings, Congress recognized the federal nature of the violence that § 245(b)(2)(B) prohibits:

Too often in recent years, racial violence has been used to deny affirmative Federal rights; this action reflects a purpose to flout the clearly expressed will of the Congress ... Such lawless acts are distinctly Federal crimes and it is, therefore, appropriate that responsibility for vindication of the rights infringed should be committed to the Federal courts.

S.Rep. No. 90-721, reprinted in 1968 U.S.C.C.A.N. at 1840.14

Unlike the Gun-Free School Zones Act of 1990 and the VAWA, § 245(b)(2)(B) was enacted as "part of a comprehensive federal body of civil rights legislation aimed at eradicating discrimination found to have an adverse impact on interstate commerce." Furrow, 125 F.Supp.2d at 1183; see also United States v. Lane, 883 F.2d 1484, 1488, 1488-92 (10th Cir.1989) (exploring the legislative history of § 245 and noting that the "genesis of § 245 is in section 2 of the Civil Rights Act of 1866"). Indeed, the Supreme Court upheld this federal body of civil rights legislation, in particular, Title II of the Civil Rights Act of 1964, as a valid exercise of Congress's Commerce Clause power. See Katzenbach, 379 U.S. at 304-05, 85 S.Ct. 377; Heart of Atlanta, 379 U.S. at 261, 85 S.Ct. 348. The Court reasoned that, in light of the "overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse," Congress operated well within its Commerce Clause powers in enacting Title II. Heart of Atlanta, 379 U.S. at 257, 261, 85 S.Ct. 348; see also Katzenbach, 379 U.S. at 305, 85 S.Ct. 377("The Civil Rights Act of 1964, as here applied [to racial discrimination in restaurants serving `interstate travelers' or `food, a substantial portion of which has moved in interstate commerce'], we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.") (emphasis added). Moreover, the Court upheld Title II even though the legislation regulated local, intrastate activities. See Katzenbach, 379 U.S. at 302, 85 S.Ct. 377(stating that Congress's Commerce Clause power "`extends to those act