United States v. Hale, Matthew F. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1922
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW HALE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 011—James T. MoodyŒ, Judge.
____________
SUBMITTED MARCH 28, 2006ŒŒ—DECIDED MAY 30, 2006
____________
Before POSNER, EASTERBROOK, and EVANS, Circuit
Judges.
PER CURIAM. Matthew Hale was convicted after a
jury trial on two counts of obstructing justice, 18 U.S.C.
§ 1503, and one count of soliciting a crime of violence, id.§ 373, in connection with his resistance to a judgment
Œ
Sitting by designation from the United States District Court for
the Northern District of Indiana.
ŒŒ
After an examination of the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is
submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
2 No. 05-1922
entered against his white supremacist organization by
United States District Judge Joan Humphrey Lefkow and
his involvement in a plot to have the judge murdered.
Hale was sentenced to a total of 480 months’ imprisonment.
I.
Hale was the “Pontifex Maximus” of a white supremacist
organization formerly known as the World Church of the
Creator (“World Church”). A law school graduate, Hale was
unable to procure the character and fitness certification
necessary for admission to the state bar of Illinois. After he
obtained no relief through the administrative appeals
process, and after both the Supreme Court of Illinois and
the Supreme Court of the United States denied review,
Hale unsuccessfully brought constitutional challenges in
federal court. See Hale v. Comm. on Character & Fitness,
335 F.3d 678 (7th Cir. 2003). He later sought, and was
denied, bar admission in Iowa as well.
In May 2000 the World Church was sued for trademark
infringement by the TE-TA-MA Truth Foundation—Family
of URI, Inc. (“the Foundation”), a religious organization
that operates under the name “Church of the Creator.” Both
parties moved for summary judgment, which Judge Lefkow
granted in favor of the World Church. On appeal, however,
we reversed and remanded with instructions to enter
judgment in favor of the Foundation. TE-TA-MA Truth
Foundation—Family of URI, Inc. v. World Church of the
Creator, 297 F.3d 662 (7th Cir. 2002). Accordingly,
on November 19, 2002, Judge Lefkow entered a detailed
order requiring the World Church to stop using varia-
tions of the trademarked name “Church of the Creator,” to
turn over books and other materials bearing the name
or obliterate any infringing mark from them, and relinquish
custody of the domain names of the World Church’s
websites to the Foundation. The Foundation soon returned
No. 05-1922 3
to court seeking enforcement of the order after Hale
publicly stated that he would not comply. The court granted
the Foundation’s motion and ordered Hale to show cause
why he should not be held in contempt.
By this time Hale was no stranger to law enforcement
authorities; he had been under FBI surveillance since
before the trademark suit began. In July 1999 a follower,
Benjamin Smith, went on a shooting rampage that left
two persons dead and nine others wounded. Days after Hale
had publicly announced he was denied an Illinois
law license, Smith traveled throughout Illinois and Indiana
targeting black, Asian, and Jewish victims before commit-
ting suicide. Hale gave a eulogy at Smith’s memorial
service, a recording of which was entered into evidence at
his trial. Hale told his followers that “brother Ben Smith
was a very good man” and praised Smith’s willingness to
“take action for his people, not to sit in the easy chair and
allow life to go by but to go out into the world and spread
our sacred message.” Responding to criticism that he had
not condemned Smith’s actions, Hale said:
[I]t’s not the policy of the church to commit crimes but
when you are causing the destruction of the white race,
when you FBI, politicians, media, when you are sending
the niggers into our neighborhoods, when you are
letting them attack white people by the bushel, when
you are promoting the destruction of our white people
left and right, do not, do not be surprised when a white
man of the character and honor of Ben Smith stands up
and fights back in the way he did. Do not be surprised
when there are white men who say enough is enough,
who see our white people be victimized in the streets,
who see white women afraid to walk down the street,
and who say, enough is enough. I say unto you, my
brothers and sisters, the future will see more, more Ben
Smiths, not because of what we’ve done, not because
we’re violent people but because, when you kick some-
4 No. 05-1922
one around, when you persecute people, when you
oppress people, people will explode. And they wonder
why, once again, we will not condemn Ben Smith. We
cannot condemn a man for doing what he feels in his
heart is right whether it’s outside the tactics of the
church or not.
Afterward the FBI began investigating Hale, and a
cooperating witness, Tony Evola, infiltrated the World
Church. At his very first World Church meeting in March
2000, Evola met Hale and apparently won his trust when he
fended off a protestor. At a meeting the following month,
Hale asked Evola to be his “head of security” because the
previous occupier of the position, Ken Dippold, had betrayed
him by cooperating in a civil case brought against the World
Church seeking damages for the victims of Benjamin
Smith’s shooting rampage. As head of security, Evola’s
duties included arranging Hale’s travel and standing by his
side during public appearances. Evola was also in charge of
the White Berets, the World Church’s “elite” fighting force.
During his time in Hale’s employ, Evola recorded a number
of conversations that were ultimately introduced into
evidence at Hale’s trial. The following discussion of the
facts is gleaned primarily from those recordings and from
electronic exchanges between Hale and Evola.
In a conversation with Evola and another follower
on June 17, 2000, Hale discussed the upcoming “blitz of
literature” he was organizing to commemorate the one-year
anniversary of Benjamin Smith’s death in the hopes of
making “big news.” Hale recounted Smith’s shooting spree,
joking that Smith’s “aim got better as he went along.” Hale
laughed while describing in detail the first four shootings.
He then commented that Smith “was a good man” and
stated: “I always stand by our comrades. If people are gonna
fight with me, I’m gonna stand with them.” In a conversa-
tion on June 23, Hale repeated for Evola and two other
followers what he had said to Benjamin Smith upon
No. 05-1922 5
meeting him: “[W]e can accomplish a lot more peacefully
and legally, you know, straddling the system, one foot on
the inside, one foot on the outside . . . . We’re legal. We’re
peaceful. We’re non-violent but we, you know, try to
undermine the system every chance we can, you know.”
Hale went on to say that he wished Smith “hadn’t done it”
but that “he set out to make a point and he did.” Smith, he
explained, “made us a household name” and for that reason,
Hale continued, he would “always remember him and
respect him and appreciate him.” Hale also lamented that
it was becoming more difficult to pursue his agenda peace-
fully and lawfully. He remarked: “[I]f I don’t get my law
license, I’m not going to be able to in good faith tell people
to obey the law like I’ve been . . . . I’m not saying that I
would . . . resort to illegal acts. I’m not saying that. But I
am saying that I think there’s going to be a different policy
in some ways.” When one of his followers responded that
“there’s gonna be killing and there’s gonna be shootin,” Hale
said, “You know and I agree with you.”
In a conversation on June 29, 2000, shortly after the
trademark suit had commenced, Hale said of Benjamin
Smith’s rampage: “[I]t must have been fun while he was
doing it.” Hale also stated that it was “personally still [his]
intention” to follow the law because he was being “watched
all the time,” but he would not “urge people to follow
the law” as it was “up to them” to decide.
The following day, Hale left a message on his “hotline” (a
voice mailbox that followers could call to hear recorded
messages) announcing that the Supreme Court of the
United States had declined to hear his challenge to the
denial of his Illinois law license. Hale stated that he
could “no longer in good faith and good conscience urge,
recommend, or instruct my adherents and supporters
in general to obey the laws of this land.” Hale declared
the United States government “illegitimate” and stated that
he and his followers “are free according to our own con-
6 No. 05-1922
science to take whatever actions we deem necessary
to resist this tyranny.” He said that “whatever blood is
spilled will be on the hands of those who so severely
wronged us today” and urged his followers to “do what
is right today to fight for our white race to secure the
existence of our people for all time on this planet.”
On December 3, 2000, Hale spoke to Evola and another
follower about the civil lawsuit against the World
Church arising from the Smith shootings. Hale suspected
that his former security chief, Ken Dippold—whom he
dubbed “a big fat coward”—would testify that Hale had
orchestrated Smith’s actions. Evola asked Hale, “What
are we gonna do about this . . . traitor?” Hale responded,
“[A]ll we can do at this point is be legal and peaceful and
follow the rules.” But he added: “[I]f I could snap my fingers
and the bastard would drop dead hideously right now, I’d do
it in a heartbeat, you know, but unfortunately, it’s not that
easy.” Later Hale remarked: “If somebody came to me and
said . . . I have the means to make sure that Polar Bear
doesn’t continue with this bullshit and I’d say hey, I don’t
want to know about it . . . I have no legal obligation to like
tell Polar Bear somebody doesn’t like him.”
On December 17, 2000, Evola and Hale spoke in an
Internet chatroom. Evola asked Hale if he had considered
Evola’s prior disclosure that he had a cousin who could take
care of “the rat.” Hale replied, “Of course, it is very impor-
tant that I be able to say truthfully that I have
never advocated anything illegal,” and later he elabo-
rated: “I know that it should be legal to dispose of big rats.
So I wouldn’t mind if something happens to big rats . . . .
But I would never want to involve myself in such things.”
On January 11, 2001, Evola recorded a conversation
with Hale at Hale’s father’s home (the headquarters of the
World Church). Evola told Hale that “everything’s in
motion” and that he needed a picture or an address to
No. 05-1922 7
give to his cousin’s “friends.” Hale responded, “I think it
would be best, you know, I think it would be best that
nothing happened.” Evola protested, and Hale explained
that Dippold had “already been deposed” so killing him
would not help their litigation position and would only draw
suspicion. Hale added that he was close to getting a law
license in Iowa and did not want to jeopardize his chances
with negative publicity because the World Church would
“automatically” be blamed. Evola persisted but Hale was
firm: “I’m gonna have to say no to this and I have to say no
for a number of reasons.” Evola offered to provide Hale with
an alibi for the murder, and Hale declined because “what I
would be doing or what I would be authorizing would be
grounds for disbarment if I had a license and I just hate to
go [sic] that.” Evola told Hale that “bad things happen to
people all the time” and implored that “all I need is an
address.” At that point Hale stated he already had mailed
the address to Evola “just for your information only.” Hale
expressed concern that “it might hurt us” and reiterated: “I
just want it clear. I’ve never given my authorization for
this.” Again Evola said he just needed the address, and
Hale replied it had been sent “just because you happen to
have other addresses.” Evola asked questions about the
layout of Dippold’s apartment, and Hale answered that he
couldn’t “go into” anything like that because “I can’t further
this.” After more talk about his upcoming hearing before
representatives of the Iowa bar, Hale said they were
“speaking in theoretical terms” and he didn’t “want to know
about these things.” The men discussed other subjects until
Evola returned to the subject of Dippold. Hale stated, “I just
want to say that I can’t approve,” and later he was em-
phatic: “I don’t want to ever hear about it again.” The next
day Hale sent an email to Evola about the “idea” and
stated, “I must veto it.” Hale wrote, “You are very persua-
sive and obviously I think extremely well of you for your
idea,” but he concluded, “I must instruct you not to pro-
ceed.”
8 No. 05-1922
In another online chat in August 2001, Hale told Evola
that a church member, Dan Hassett, was attempting to
remove Hale from his position as Pontifex Maximus. Evola
wrote, “Maybe he has to go?” but Hale did not respond. In
November, Hale forwarded to Evola an abrasive email
received from former church member Pat Langballe and
asked Evola to “persuade him to never say such sick crap to
me again.” In December, Evola offered to do to Langballe
what “we were gonna do to Dippold,” but Hale declined,
suggesting instead that Evola should just scare Langballe
into treating him with more respect. Later in the conversa-
tion, Hale stated, “I have to be able to take a polygraph if
ever it comes up and pass it, if I’m ever asked if I have ever
ordered, instructed, or encouraged illegal activity, I want to
be able to pass that polygraph.” In May 2002, as the discord
between Hale and Hassett escalated, Evola once again
asked Hale “what you want done with him,” and Hale
explained that he had reported Hassett to the police for
stealing funds from the church and hoped he would be
arrested.
All this was a prelude to the events of late 2002 leading to
Hale’s arrest. In November, after Judge Lefkow issued the
order requiring the World Church to cease using its trade-
marked name, Hale penned a tract entitled “Rigged Court
System Declares War on Church” and sent it to his follow-
ers. Hale wrote that the order “places our Church in a state
of war with this federal judge and any acting on authority
of her kangaroo court.” Hale branded the mandate a “book
burning order,” suggesting to his followers that all World
Church literature—including their guiding light, The White
Man’s Bible—would have to be destroyed. Though the
World Church was represented by counsel, Hale personally
sent a letter to Judge Lefkow on December 12, 2002,
complaining that “gross injustice” and “fraud” had occurred
in the case. He also wrote that he was no longer in control
of World Church activities, and that “from [his] understand-
No. 05-1922 9
ing of the Court’s order [he had] no material in [his] control
or possession that falls afoul of it.”
On December 4, 2002, just days after Hale disseminated
his manifesto, he emailed Evola and asked him to locate the
home address of “Judge Joan H. Lefkow, PROBABLE JEW
OR MARRIED TO JEW,” as well as the home addresses of
the three attorneys, all male, who represented the Founda-
tion in the trademark case. Hale labeled two of the lawyers
“JEW” and the other “TRAITOR WHITE.” He concluded the
message by stating: “Any action of any kind against those
seeking to destroy our religious liberties is entirely up to
each and every Creator according to the dictates of his own
conscience.”
On December 5, Evola went to Hale’s home unan-
nounced to discuss the email “about the Jew judge” and, in
particular, Hale’s request to locate her home address:
Hale: That information, yes, for educational purposes
and for whatever reason you wish it to be.
Evola: Are we gonna . . . I’m workin’ on it. I, I got a
way of getting it. Ah, when we get it, we gonna
exterminate the rat?
Hale: Well, whatever you wanna do. . .
Evola: Jew rat?
Hale: . . . basically, it’s, you know? Ah, my position’s
always been that I, you know, I’m gonna fight
within the law and but ah, that information’s
been pro-, provided. If you wish to, ah, do
anything yourself, you can, you know?
Evola: Okay.
Hale: So that makes it clear.
Evola: Consider it done.
Hale: Good.
10 No. 05-1922
Hale asked Evola to send him the address once he
learned it so that Hale could post it on the Internet.
On December 9, Evola sent an email to Hale announcing:
I called the exterminator I know about the rat prob-
lem we talked about. The guy is good and does a good
quiet job. You have to know where rats hide and he
think [sic] he located her. He is working to get rid of the
femala [sic] rat right now.
Hale did not reply, but an electronic receipt confirms that
he opened the message.
On December 17, Evola appeared unannounced at
Hale’s home to discuss the plan. Hale did not want to
discuss the matter because he assumed that he was “always
being listened to, watched, monitored.” When Evola men-
tioned “exterminating the rat,” Hale answered, “I can’t be
a party to such a thing” and lamented that Evola was
putting him “in an impossible situation.” Hale expressed his
concern that “there’s a federal statute that makes it . . . an
imprisonable offense to know about a crime that’s to be
occurred . . . without telling anybody.” Evola stated that the
plan was already in motion and that it was costing him
more than he expected; he asked Hale if there were “two
trusted brothers that could help out with this.” Hale
responded, “I can’t take any steps to further anything
illegal, ever.” Evola then asked if he could stay with Hale
“when this stuff does come to happen,” and Hale refused,
explaining that he was concerned about being considered
“some kind of accessory in something I do not want to be an
accessory in.” Hale later stated: “I’m not telling you to do
anything, you know. Either way.” “[W]hatever a person
does,” he added, “is according to the dictates of their own
conscience.” Evola again alluded to compensating the
assassins and mentioned being “a couple hundred short.”
Hale responded, “I just can’t provide anything.” Hale stated
No. 05-1922 11
that he might “have a smile on his face” if he were to read
in a newspaper that “something happens to certain creepy
people” but that he could not “be any kind of party.” When
Evola discussed the trustworthiness of “his cousin’s
friends,” Hale replied, “[O]f course, we’re talking about
Little League baseball, aren’t we?” Hale asked Evola not to
turn up unannounced at his home again.
Hale was arrested in Chicago on January 8, 2003, when
he appeared for a contempt hearing for his refusal to
comply with Judge Lefkow’s order in the trademark case.
Pursuant to a third superceding indictment filed in October
2003, he was charged with three counts of obstructing
justice, 18 U.S.C. § 1503, and two counts of soliciting a
crime of violence, id. § 373. The latter counts separately
charged Hale with soliciting Tony Evola and another
follower named Jon Fox to murder Judge Lefkow. The
obstruction charges concerned (1) Hale’s letter of December
12, 2002, falsely advising Judge Lefkow that he possessed
no materials that violated the court’s order; (2) his attempts
to thwart Judge Lefkow in the discharge of her duties by
soliciting her murder; and (3) his alleged directives to his
father to lie to the grand jury.
Before trial the government notified Hale of its intent
to introduce testimony and recorded conversations re-
garding Hale’s “relationship with Ben Smith” and his
“conduct on the days immediately following the Smith
shooting spree.” The government, citing Federal Rule of
Evidence 404(b), argued that the proposed evidence was
“strongly corroborative” of Hale’s “intent in the solicita-
tion case.” Hale objected, arguing that evidence concern-
ing Smith would be inflammatory and its probative value, if
any, outweighed by its prejudicial effect, see Fed. R. Evid.
403. The district court deferred its ruling until the evidence
was presented at trial.
12 No. 05-1922
Hale was tried before a jury in April 2004. At trial the
government called James Burnett, a former member of the
World Church and former assistant to Hale. When the
government began to question Burnett about Benjamin
Smith, Hale objected. The government responded that
the jury needed to hear Hale’s favorable comments about
Smith in order to properly interpret his other remarks
including the claims that he always encouraged his follow-
ers to act within the law. The government argued that
Hale’s refusal to condemn Smith’s murderous rampage and
his outright praise of Smith were prime examples that his
instructions to act within the law were not meant to be
taken seriously. The district court allowed Burnett to
testify, but admonished the government to “stay away from
anything that’s going to be inherent in saying that Hale had
anything to do with Ben Smith.” The district court offered
to give a limiting instruction to the jury, but Hale’s counsel
replied, “[W]e think it’s so prejudicial that we don’t want to
highlight it.” The district court encouraged counsel to notify
the court at any time should he change his mind and want
a limiting instruction. Burnett then testified about two
conversations during which Hale opined that Smith’s
shootings were “perfectly moral” because the victims were
“not white.” According to Burnett, Hale also stated that he
wished Smith “would have killed more race traitors.” It was
through Burnett that the government introduced the
recording of Hale’s eulogy of Smith.
Hale renewed his objection when the government later
sought to introduce through Tony Evola the recorded
conversations and Internet communications the two had
regarding Smith. Hale’s attorneys singled out portions
of the transcripts they considered particularly inflam-
matory, including Hale’s jokes about the victims, his racial
slurs, and his comment that Smith must have had fun
during his rampage. The district court initially ruled in
favor of Hale, concluding that the probative value of the
No. 05-1922 13
evidence “is just outweighed by the prejudice.” But when
the government pressed its position that the evidence
was highly probative of the specific-intent element of § 373,
the district court reconsidered: “[T]his case is about a
defendant who . . . can be said to talk out of both sides of his
mouth. The evidence the defense objects to is probative of
which statements the defendant wanted Mr. Evola to
understand or meant seriously; and, therefore, it’s highly
probative of his intent.” The court added that it viewed the
evidence as outside the scope of Rule 404(b) because that
rule “doesn’t preclude evidence probative of intent in a
specific intent crime, which is what we’ve got here.” Instead
the court characterized the admissibility of the evidence as
a consideration under Rule 403 and concluded that the
“probative value is not outweighed by any unfair prejudice
to the defendant.” The defense again declined an instruction
that would have admonished the jury not to consider the
evidence for a purpose other than to establish the element
of intent.
The specter of Benjamin Smith returned during clos-
ing argument when the government, as expected, re-
minded the jury that Hale had made a hero out of a follower
who killed two people. And during rebuttal the prosecutor
stated: “The government had evidence that the defendant
had a member of his organization kill two people and shoot
lots of others.” Hale did not object contemporaneously to the
statement, but in his motion for a new trial he argued that
the remark was so prejudicial as to have rendered his trial
fundamentally unfair. The district judge expressed “shock”
at seeing the prosecutor’s precise words in the transcript
because they had not caught the court’s attention while
listening to the live argument. Ultimately, however, the
court concluded that the comment was understood “simply
as a reference to the fact that the shootings occurred, not
that Hale orchestrated the shootings.” The court cited the
context in which the remark was made, the various mean-
14 No. 05-1922
ings that might be given the word “had,” and the absence of
an objection. Applying the five-factor test used to analyze
whether improper argument renders a trial so unfair as
to amount to a denial of due process, see United States v.
Miller, 199 F.3d 416, 422 (7th Cir. 1999), the court con-
cluded that the challenged statement did not rise to that
level.
The jury found Hale guilty on one of two counts of
soliciting a crime of violence and on all three counts of
obstructing justice. After the verdicts Hale renewed his
earlier motions for judgment of acquittal, see Fed. R. Crim.
P. 29(c), which the district court granted only as to the
obstruction count relating to Hale’s alleged attempts to
influence his father’s testimony before the grand jury. Thus
Hale was ultimately convicted of solicitation and obstruc-
tion in connection with his efforts to have Judge Lefkow
killed, and obstruction in connection with his letter of
December 12, 2002, to the judge. The solicitation conviction
resulted from Hale’s dealings with Tony Evola; the jury
found Hale not guilty of soliciting Jon Fox.
Hale was sentenced on April 26, 2005. In light of United
States v. Booker, 543 U.S. 220 (2005), the district court
acknowledged that the sentencing guidelines were ad-
visory but that it was nevertheless required to calculate and
consider the applicable guidelines range. For the first
obstruction conviction—the one pertaining to Hale’s let-
ter to Judge Lefkow—the district court calculated an
offense level of 12 after making no adjustments to the base
offense level found in U.S.S.G. § 2J1.2(a). As for the sec-
ond obstruction conviction, which pertains to Hale’s at-
tempts to impede Judge Lefkow in the discharge of her
duties by soliciting her murder, the district court calculated
an adjusted offense level of 23, after adding upward adjust-
ments because the offense involved threatening to cause
physical injury, see U.S.S.G. § 2J1.2(b)(1), and because
No. 05-1922 15
the crime was motivated by Judge Lefkow’s status as a
government officer, see id. § 3A1.2(a)(1)(A).
On the count of soliciting a crime of violence, the district
court began with a base offense level of 28, see U.S.S.G.
§ 2A1.5(a), and again added the three-level “official vic-
tim” adjustment, see id. § 3A1.2(a)(1)(A), as well as a two-
level upward adjustment for obstruction of justice, see id. §
3C1.1. The latter stemmed from letters Hale sent while he
was awaiting trial, in which he attempted to convince Jon
Fox to testify falsely that Hale had known all along that
Evola was a government informant and that Hale could not
possibly have intended any harm to Judge Lefkow. Finally,
over Hale’s objection, the district court applied U.S.S.G. §
3A1.4 to increase the offense level by 12 levels and the
criminal history category from Category I to Category VI
because the solicitation “involved, or was intended to
promote, a federal crime of terrorism.”
The resulting total offense level of 45, in combination
with the criminal history category of VI, yielded an advisory
guidelines sentence of life imprisonment. After addressing
Hale’s objections at length, the district sentenced him to a
total of 480 months’ imprisonment. That term equals the
maximum statutory penalties of 20 years for the solicitation
count and 10 years for each obstruction of justice count.
II.
Hale appeals, challenging (1) the sufficiency of the
evidence underlying his convictions for solicitation and
obstruction in connection with the plan to kill Judge
Lefkow; (2) the admission of evidence relating to Benjamin
Smith and the comment in rebuttal appearing to blame
Hale for Smith’s shooting rampage; and (3) his sentence.
Hale had counsel at trial but has elected to represent
himself on appeal.
16 No. 05-1922
A. Sufficiency of the evidence
Hale argues that no rational trier of fact could have found
beyond a reasonable doubt that he solicited Tony Evola to
murder Judge Lefkow. He contends that his conversation
with Evola on December 17, 2002, demonstrates conclu-
sively that he opposed Evola’s plan and that no rational
jury could have concluded that his comments suggesting
otherwise were meant to be taken seriously. According to
Hale, the government’s evidence actually exonerates him
because it establishes that he believed Evola intended to
kill opposing counsel in the trademark case, whose murder
he “had a greater motive to ‘solicit.’ ” Hale also contends
that, if the evidence is insufficient to support the conviction
for solicitation, the related conviction for obstruction of
justice must also be vacated.
When reviewing challenges to the sufficiency of the
evidence, we view all evidence in the light most favorable to
the government. See United States v. Dumeisi, 424 F.3d
566, 581 (7th Cir. 2005). We will reverse a jury’s verdict
only if no rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. See
United States v. Moore, 425 F.3d 1061, 1072 (7th Cir. 2005);
Dumeisi, 424 F.3d at 581. The appellant’s hurdle, as we
have often stated, is “nearly insurmountable.” See, e.g.,
United States v. Caldwell, 423 F.3d 754, 757 (7th Cir. 2005);
United States v. King, 356 F.3d 774, 779 (7th Cir. 2004);
United States v. Brown, 328 F.3d 352, 355 (7th Cir. 2003).
In order to meet its burden of proof on the solicitation
count, the government had to establish (1) with “strongly
corroborative circumstances” that Hale intended for Tony
Evola to arrange the murder of Judge Lefkow; and (2) that
Hale solicited, commanded, induced, or otherwise tried to
persuade Evola to carry out the crime. 18 U.S.C. § 373; see
United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir.
1994); United States v. Razo-Leora, 961 F.2d 1140, 1147 n.6
No. 05-1922 17
(5th Cir. 1992); United States v. Korab, 893 F.2d 212, 215
(9th Cir. 1989).
Taking the second element first: the government had
to prove that Hale “solicited, commanded, induced, or
otherwise tried to persuade” Evola to carry out a violent
crime. The government argues that the solicitation was
accomplished “through coded and disguised language.”
Asking Evola to locate Judge Lefkow’s home address “for
whatever reason you wish it to be” was, according to the
government, “Hale’s code for approving the attack.” For his
part, Hale all but concedes that there was adequate evi-
dence with respect to this element; he seems to accept that
the government proved he solicited the murder of someone,
just not Judge Lefkow.
We conclude that there is sufficient evidence in the record
to support the jury’s finding on the solicitation element.
Hale knew that Evola was willing to arrange murder on his
behalf; he had offered to do so on several previous occasions,
and Hale had engaged him in serious discussion concerning
at least one of those proposed victims. Hale also knew that
securing a proposed victim’s home address was a prelimi-
nary step in Evola’s process; it is through that lens that the
government asked the jury to read Hale’s email of Decem-
ber 4, 2002, asking Evola to acquire Judge Lefkow’s home
address. Evola followed up Hale’s email by visiting him the
next day and making it clear that he interpreted the email
as a suggestion to “exterminate the rat.” When Hale
indicated that he did not want to be involved but that Evola
was free to act himself, Evola said, “Consider it done,” to
which Hale replied, “Good.” Unlike his repudiation of
Evola’s earlier plots, Hale did not “veto” Evola’s plan after
this conversation; in fact, Hale responded with silence to
Evola’s email of December 9, which can be read only as
conveying to Hale that the “exterminator” had located
Judge Lefkow and was “working to get rid of” her. In their
conversation on December 17, Hale protested that he
18 No. 05-1922
could not be involved in illegal activity in any way. In the
same conversation, however, he mentioned that he would
have a smile on his face if he was to read in a newspaper
that “something happens to certain creepy people.” As the
government has maintained, Hale tried to “create ‘plausible
deniability’ in the event his conversation was be-
ing monitored.” Under these circumstances, we have no
difficulty concluding that a jury could find from the evi-
dence that Hale’s conduct was a call to action, not a passive
failure to intervene to stop another’s crime or, as Hale
would have us believe, disapproval of Evola’s stated prepa-
rations to kill Judge Lefkow. The jury believed the govern-
ment’s theory rather than Hale’s, and it is not our place to
reweigh the evidence, see Brown, 328 F.3d at 355.
Having decided that a rational jury could conclude that
Hale tried to persuade Evola to act, we now examine
whether the government met its burden of producing
evidence “strongly corroborative” of Hale’s intent that Evola
murder Judge Lefkow. 18 U.S.C. § 373; see Rahman, 34
F.3d at 1337. Examples of circumstances “strongly corrobo-
rative” of intent include the defendant offering or promising
payment or another benefit in exchange for committing the
offense; threatening harm or other detriment for refusing to
commit the offense; repeatedly soliciting or discussing at
length in soliciting the commission of the offense, or making
explicit that the solicitation is serious; believing or knowing
that the person solicited had previously committed similar
offenses; and acquiring weapons, tools, or information for
use in committing the offense, or making other apparent
preparations for its commission. United States v. Gabriel,
810 F.2d 627, 635 (7th Cir. 1987) (citing S. Rep. No. 307,
97th Cong., 1st Sess. 183 (1982)); United States v. McNeill,
887 F.2d 448, 450 (3d Cir. 1989). These examples are not
exclusive, nor are they conclusive indicators of intent
to solicit. Gabriel, 810 F.2d at 635. The existence of strongly
corroborating circumstances is a question of fact for the
jury. See id. at n.5.
No. 05-1922 19
We conclude that there was sufficient evidence from
which the jury could determine that Hale possessed the
requisite intent. Hale provided Evola with Judge Lefkow’s
name and business address in order to help him locate the
judge’s home address. On December 17, 2002, Hale and
Evola discussed at length the plan to have the judge
murdered, albeit in oblique terms. And Hale had every
reason to believe that Evola would arrange to have Judge
Lefkow killed at his request as Evola had offered to provide
the same service with respect to Ken Dippold, Dan Hassett,
and Pat Langballe. Hale’s suggestion to Evola that he
should do “whatever you wanna do” to Judge Lefkow thus
evinces Hale’s intent to have the judge murdered. And Hale
made his intent patent when he sent Evola an email with
the judge’s name and business address along with the
admonition, “Any action of any kind against those seeking
to destroy our religious liberties is entirely up to each and
every Creator according to the dictates of his own con-
science”; Evola’s prior offers to “take care of” people estab-
lished exactly what actions would be in accord with the
dictates of his conscience. Hale cannot pretend that Evola
did not tell him repeatedly over the course of their acquain-
tance that he had “friends” willing to perform acts of
violence. And Hale made his desire explicit by replying with
“Good” when Evola told him on December 5 that the plan to
“exterminate the rat” was as good as done. Hale’s insistence
that he thought Evola was talking about someone else on
December 5 is a frivolous argument on this record, particu-
larly because in the days that followed Evola identified the
target in language that pointed to the judge alone, but Hale
said nothing to suggest that a misunderstanding had
occurred. Evola’s email to Hale on December 9 assured Hale
that the “exterminator” he had called “located her” and was
“working to get rid of the femala [sic] rat right now.” Judge
Lefkow was the only woman on the list that Hale sent on
December 4, so his defense that he was confused about the
intended victim is unconvincing. Hale’s inaction after
20 No. 05-1922
opening Evola’s email of December 9 stands in stark
contrast to his “veto” of Evola’s plan for Ken Dippold and is
strong evidence that it was the judge he wanted killed.
Hale’s statements that he did not wish to participate
in illegal conduct do not call into question the jury’s find-
ings with respect to his intent. The government convinc-
ingly portrayed Hale as a leader who encouraged each
follower to act “according to the dictates of his own con-
science”—in reality Hale’s conscience—while verbalizing his
own commitment to following the law. Hale never criticized
Evola’s desire to inflict harm on Hale’s enemies even as he
attempted to insulate himself from blame. When Evola
informed Hale that a plan was in motion to assassinate
“traitor” Ken Dippold, Hale told Evola that he thought
“extremely well” of him for his idea although he ultimately
canceled the plan because he was concerned that he could
be personally implicated. Likewise, with respect to
Benjamin Smith, Hale repeatedly stated that the World
Church operated within the confines of the law but never-
theless refused to condemn Smith’s actions and painted
Smith as a martyr to the cause of white supremacy. This
pattern was consistent with Hale’s behavior when Evola
offered to have Judge Lefkow killed; he professed his own
desire to follow the law but encouraged Evola to do what-
ever he wanted. In Gabriel, the appellants who had been
convicted of soliciting the arson of their businesses argued
that their attempt to postpone the crime and their refusal
to supply the arsonist with alcohol for the fire and keys
proved that they were not serious about the arson. We
concluded that the jury could have inferred that their
actions “were means of distancing themselves from the
planned arsons and not designed to rebuff or discourage”
the crime. Gabriel, 810 F.2d at 635-36. In this case too
it was up to the jury to decide between competing views
of the evidence, and it accepted the government’s theory
that Hale’s refusal to overtly help with the crime and
No. 05-1922 21
his ruminations on his innocence masked his true intention
that Evola carry out their plan. We will not substitute our
judgment for the jury’s. See United States v. LaShay, 417
F.3d 715, 718 (7th Cir. 2005).
B. Evidentiary Rulings
Hale challenges the district court’s admission of testi-
mony and recorded conversations concerning Hale’s positive
comments about Benjamin Smith. Hale argues that this
evidence should have been excluded under Federal Rule of
Evidence 404(b) because it had “zero” probative value and
was unfairly prejudicial. See United States v. Robinson, 161
F.3d 463, 467 (7th Cir. 1998).
Rule 404(b) “forbids the use of evidence of a defendant’s
history of illegal or unethical acts to prove that he is a
person of bad character and likely therefore to have commit-
ted the crime of which he is accused in the present case, or
perhaps some other, undetected crime for which he should
be punished.” United States v. Paladino, 401 F.3d 471, 474-
75 (7th Cir. 2005). If the evidence is relevant to another
issue, such as intent, Rule 404(b) is not a basis for exclu-
sion. See United States v. Macedo, 406 F.3d 778, 792 (7th
Cir. 2005). Neither does the rule bar the admission of
evidence of acts so “inextricably intertwined” with, or
“intricately related” to, charged conduct that it helps the
factfinder form a more complete picture of the criminal
activity. See Paladino, 401 F.3d at 475; United States v.
Gougis, 432 F.3d 735, 742 (7th Cir. 2005). The evidence
must of course be relevant; it must have “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401;
see United States v. Price, 418 F.3d 771, 778 (7th Cir. 2005).
But even relevant evidence will be excluded if its probative
22 No. 05-1922
value is outweighed by the danger of unfair prejudice. Fed.
R. Evid. 403; see Gougis, 432 F.3d at 743.
We review the district court’s evidentiary rulings for
an abuse of discretion. See United States v. Turner, 400 F.3d
491, 499 (7th Cir. 2005). We give special deference to the
district court’s assessment of the balance between probative
value and prejudice because that court is in the best
position to make such assessments. See id. As the district
court phrased it, the evidence pertaining to Smith was
probative in that it demonstrates that Hale was someone
who “talk[ed] out of both sides of his mouth.” Hale’s reaction
to the Smith shootings fit into the government’s mosaic of
evidence portraying him as a leader eager to accept the
“benefit” of his followers’ actions but take no responsibility
for them. Hale welcomed the publicity that he and the
World Church experienced after the Smith shootings, and
though he continued to profess a personal philosophy of
clean living, he essentially encouraged his followers to do
whatever they pleased, well aware of the lengths to which
some might go. The evidence relating to Smith provided
context for the jurors when hearing about Hale’s dealings
with Evola; it allowed them to decide whether Hale was
trying to insulate himself from culpability while orchestrat-
ing a crime or whether he was merely talking to his friend
Tony about “Little League baseball.” Hale’s reaction to
the Smith shootings, above all, sent a message to his
followers about how he expected them to proceed in the
future, about who a model “brother” was. In a solicita-
tion case—which hinges on the defendant’s relationship to
the ultimate actor—such evidence is probative.
On the other side of the scale, the potential prejudice was
also significant. Hale’s remarks consisted of kind words
about a man who had briefly terrorized the community just
a few years before and jokes and slurs aimed at the victims.
There is the risk that listening to Hale’s comments could
engender in the jurors a desire to hold him responsible for
No. 05-1922 23
Smith’s crimes or punish him for his noxious views. That
possibility admittedly troubled the district court, but we
note that Hale’s counsel twice rejected the court’s offer of a
limiting instruction, a device that we frequently have
recognized as an effective means of preventing the jury from
deciding a case on improper grounds. See United States v.
Chavis, 429 F.3d 662, 688-69 (7th Cir. 2005); United States
v. Puckett, 405 F.3d 589, 599 (7th Cir. 2005). We realize
that counsel made a strategic decision not to underscore the
evidence, but that strategy also conveys Hale’s contempora-
neous belief that accepting the risk of misuse was prefera-
ble to focusing the jury on a proper use of the evidence. We
find it to be a close question but we cannot quarrel with the
district court’s deliberative decision to admit the challenged
evidence. See United States v. Toro, 359 F.3d 879, 884-85
(7th Cir. 2004).
Hale, though, argues that the prejudice must be measured
in light of the prosecutor’s remark during his rebuttal
argument that “the government had evidence that the
defendant had a member of his organization kill two people
and shoot lots of others.” Hale contends that this statement
violated the district court’s admonition not to link Hale to
the Benjamin Smith shootings and “poisoned” the trial. For
its part the government concedes that, in isolation, the
statement “could be construed as arguing that defendant
directly ordered Smith to engage in the shooting spree,” but
argues that any error was harmless.
Hale’s argument is better characterized as a claim of
prosecutorial misconduct separate from the district court’s
evidentiary ruling. In analyzing such claims, we first
determine whether the prosecutor’s remark was improper.
United States v. Wesley, 422 F.3d 509, 515 (7th Cir. 2005).
If so, and if the remark was generally improper but not
directed at a specific constitutional right, we consider the
remark in light of the entire record and evaluate whether
24 No. 05-1922
the defendant was deprived of a fair trial. Id. Our ultimate
concern is whether improper argument “so infected the trial
with unfairness as to make the resulting conviction a denial
of due process.” Darden vs. Wainwright, 477 U.S. 168, 181
(1986) (quotation marks and citation omitted); United
States v. Love, 336 F.3d 643, 647 (7th Cir. 2003). We
consider (1) whether the prosecutor misstated the evidence;
(2) whether the remark implicated specific rights of the
accused; (3) whether the defendant invited the response; (4)
the efficacy of curative instructions; (5) the defendant’s
opportunity to rebut; and, most importantly, (6) the weight
of the evidence. See Love, 336 F.3d at 647-48. And because
Hale did not object to the prosecutor’s rebuttal at trial, he
has the added burden of demonstrating plain error. United
States v. Washington, 417 F.3d 780, 786 (7th Cir. 2005).
This requires him to establish not only that he was deprived
of a fair trial, but that the outcome of the proceedings would
have been different absent the improper remark. United
States v. Della Rose, 403 F.3d 891, 906 (7th Cir. 2005);
United States v. Sandoval, 347 F.3d 627, 631 (7th Cir.
2003).
Like the district court, we are perplexed by the gov-
ernment’s explanations for the comment. During posttrial
proceedings, the government defended the remark as a
fair inference from the evidence and an appropriate rebuttal
to defense counsel’s own argument that the government had
been working to “set up” Hale since the Smith shootings.
The district court deemed this position “surprising and
troubling” in that it suggested that “the government
intentionally reneged on its promise to the court and to
defense counsel” that it would not blame Hale for Smith’s
rampage. The district court was willing to assume, however,
that the government was merely casting for the best
argument to justify a slip of the tongue. Apparently un-
grateful for this allowance, the government equivocates and
first tells us that it “stands by” its position that the remark
No. 05-1922 25
was appropriate and supported by the record (this despite
being “equally as shocked as the district court that this line
appeared in the record”). If that is so, then the government
confirms the district court’s fear that it deliberately violated
the court’s instruction. Worse still, we cannot agree that the
statement is supported by the evidence, which convincingly
shows Hale’s delight at Smith’s crimes but not his prior
approval. The import of the statement, read literally and in
isolation, is that the government “had evidence” that was
not admitted at trial showing that Hale orchestrated the
Smith shootings, an inference that is “clearly improper.” See
United States v. White, 222 F.3d 363, 370 (7th Cir. 2000).
Ultimately, however, the government steps back from its
defense of the remark, describing as “particularly accurate”
the district court’s view that the prosecutor “misspoke in
the heat of the moment” and attempted to justify the errant
comment instead of acknowledging it. We are not charged
with deciding whether the remark was made deliberately or
accidentally, but the government’s reluctance to fully
disavow it only adds weight to Hale’s argument.
Nevertheless, Hale has a steep hill to climb. The remark
was improper, but we agree with the district court that
Hale was not prejudiced. Though he could not reply to
the rebuttal argument, we are not inclined to give great
weight to this factor when the record suggests that no one
in the courtroom noticed the remark. The district court was
in a better position to assess its impact, see United States v.
Mealy, 851 F.2d 890, 903 (7th Cir. 1988), and the court
concluded that the remark was “taken by all” as a reminder
that the shootings occurred rather than an assertion that
Hale ordered them. This view is corroborated by Hale’s
failure to object to this statement even though counsel
objected frequently throughout the prosecutor’s rebuttal.
And the surrounding context also went far in reducing the
prejudicial effect:
26 No. 05-1922
Weisman: As to Mr. Evola, before Tony Evola even
had any conversations with the defendant,
we knew a lot about him. Ben Smith killed
two people, and he thought that was—
Durkin: Judge, I object to the prosecutor’s use of
“we” as putting his own integrity at issue
here.
The Court: I think his use of the word “we,” probably
the government I am assuming.
Weisman: The government had evidence that the
defendant had a member of his organiza-
tion kill two people and shoot lots of others.
And the defendant got on national televi-
sion and said it wasn’t that bad of a thing.
The problem with it wasn’t that there were
two people dead, but that his law license
might be denied.
The government’s emphasis here, as it had been throughout
the trial, was on Hale’s reaction to the shootings after they
occurred, not on any alleged involvement before the fact.
Moreover, the remark is an isolated comment in the context
of a trial during which the government otherwise obeyed
the court’s admonition not to suggest that Hale was behind
the Smith shootings. The evidence against Hale was
considerable, and the prosecutor’s comment was not of the
sort that improperly called attention to his exercise of a
particular right. Mindful of the exacting plain error stan-
dard, we cannot say Hale has met his burden of establish-
ing that the outcome of his trial would have been different
but for the prosecutor’s remark.
C. Sentence
Finally, Hale challenges his overall 480-month sentence
on several grounds. We may quickly dispose of his argu-
No. 05-1922 27
ment regarding the application of U.S.S.G § 3A1.4, the
terrorism adjustment. Relying on United States v. Arnaout,
282 F. Supp. 2d 838 (N.D. Ill. 2003), Hale argues that
§ 3A1.4 cannot apply because he was not convicted of a
“federal crime of terrorism.” Our decision on appeal in
that case forecloses his argument. We held that § 3A1.4
applies “where a defendant is convicted of a federal crime of
terrorism as defined by [18 U.S.C.] § 2332b(g)(5)(B)
or where the district court finds that the purpose or in-
tent of the defendant’s substantive offense of conviction
or relevant conduct was to promote a federal crime of
terrorism as defined by § 2332b(g)(5)(B).” United States v.
Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (emphasis
added); accord United States v. Mandhai, 375 F.3d 1243(11th Cir. 2004); United States v. Graham, 275 F.3d 490(6th Cir. 2001). That Hale did not commit a federal crime of
terrorism is irrelevant; the district court found that
the purpose of his soliciting Evola was to promote a fed-
eral crime of terrorism—the murder of a federal officer
or employee.1 Hale does not argue that the court’s factual
1
Under 18 U.S.C. § 2332b(g)(5)(B), a “federal crime of terrorism”
is defined as a listed offense that was calculated to influence
or affect the conduct of government by intimidation or coercion, or
to retaliate against government conduct. The enumerated crimes
include 18 U.S.C. § 1114, the murder or attempted murder of
officers and employees of the United States. The definition of
“federal crime of terrorism” appears within a statutory section
entitled “Acts of terrorism transcending national boundaries,” see
§ 2332b, and some of the cases cited above involve international
terrorism, but the 1996 and 1997 amendments to the sentencing
guidelines removed any requirement that international terrorism
be implicated by the offense of conviction; the guidelines simply
borrow the statutory definition from § 2332b(g)(5)(B). See
Graham, 275 F.3d at 497-98 (enhancement applied to member of
(continued...)
28 No. 05-1922
finding is clearly erroneous, so the adjustment applies.
Hale also makes the frivolous argument that the remedial
opinion in Booker retroactively increased his sen-
tence, depriving him of due process. We held in United
States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005), that
there is no ex post facto claim to be made based on the
remedial holding in Booker. Equally frivolous is Hale’s
argument that his sentence was increased based upon facts
not charged in the indictment or proven to a jury beyond a
reasonable doubt in violation of Apprendi v. New Jersey, 530
U.S. 466 (2000). Hale was sentenced after Booker, and the
district court treated the guidelines as advisory; no consti-
tutional violation resulted from the application of upward
adjustments based on facts found by the district court by a
preponderance of the evidence. See United States v. Belk,
435 F.3d 817, 819 (7th Cir. 2006) (“[J]udges may continue
to make findings based on a preponderance of the evidence,
provided that they do not treat the Sentencing Guidelines
as ‘laws’ with binding effect.”).
Finally, Hale argues that his overall sentence is unrea-
sonable. We have rejected Hale’s sole challenge to the
calculation of the guidelines range—the application of
§ 3A1.4—and will accept the range as properly calcu-
lated and therefore presumptively reasonable. See United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Hale
can rebut the presumption by establishing that the sentence
is unreasonable when measured against the factors set
forth in 18 U.S.C. § 3553(a). See id. He points to two factors:
1
(...continued)
domestic militia involved in plot to forcibly overthrow the
government); United States v. Nichols, 169 F.3d 1255, 1270 n.5
(10th Cir. 1999) (explaining that § 3A1.4 would apply to Terry
Nichols, convicted for his role in the bombing of the Alfred P.
Murrah building in Oklahoma City, but for ex post facto consider-
ations).
No. 05-1922 29
“the nature and circumstances” of the offense and “the
history and characteristics of the defendant.” The first
argument is flimsy; Hale asserts that the government’s role
in the offense—“two years of attempts by the FBI to steer
[him] away from obeying the law”—renders his sentence
unreasonable. The argument suggests “sentencing entrap-
ment,” which occurs when an individual predisposed to
commit a lesser crime commits a more serious offense as a
result of “unrelenting government persistence.” See United
States v. Gutierrez-Herrera, 293 F.3d 373, 377 (7th Cir.
2002); United States v. Estrada, 256 F.3d 466, 473-74 (7th
Cir. 2001). The government overcomes an alleged entrap-
ment defense by establishing that the defendant was
predisposed to commit the offense charged. This is not a
great hurdle; “all that must be shown to establish predispo-
sition and thus defeat the defense of entrapment is willing-
ness to violate the law without extraordinary inducements.”
Estrada, 256 F.3d at 475. Hale asserts that he would not
have solicited Judge Lefkow’s murder if not for the govern-
ment’s involvement, but he has not established that the
government, through Tony Evola, used “extraordinary in-
ducements” to elicit criminal activity. As we have stated,
the best way to manifest one’s unwillingness to partici-
pate in criminal activity, and avoid the attendant penalties,
is to “say no and walk away.” United States v. Wilson, 129
F.3d 949, 951 (7th Cir. 1997).
As for Hale’s “history and characteristics,” he asserts that
he is entitled to a lower sentence because he lacks a prior
criminal record, he is a law school graduate, and his father
is a retired police officer. The district court was aware of
these facts, considered them, and explained at length why
Hale merited the overall sentence imposed. Hale was
entitled to no more. See United States v. Williams, 436 F.3d
767, 769 (7th Cir. 2006); United States v. Laufle, 433 F.3d
981, 987-88 (7th Cir. 2006); United States v. Cunningham,
429 F.3d 673, 675-76 (7th Cir. 2005).
AFFIRMED.
30 No. 05-1922
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-30-06