United States v. William White , 698 F.3d 1005 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 11-2150 & 11-2209
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
Cross-Appellee,
v.
W ILLIAM W HITE,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00851-1—Lynn Adelman, Judge.
A RGUED JUNE 8, 2012—D ECIDED O CTOBER 26, 2012
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
P ER C URIAM. William White was charged with
soliciting the commission of a violent federal crime
against a juror in violation of 18 U.S.C. § 373. The alleged
solicitations at issue were messages that White posted to
a website that he created to advance white supremacy,
which included White’s 2005 statement that “[e]veryone
associated with the Matt Hale trial has deserved assas-
2 Nos. 11-2150 & 11-2209
sination for a long time,” and his 2008 publication of
information related to the foreperson, “Juror A,” of the
jury that convicted Hale. The 2008 post disclosed Juror A’s
home address and mobile, home, and work phone num-
bers, though it did not contain an explicit request for
Juror A to be harmed.
White was tried and convicted by a jury. White then
filed a Rule 29 motion for entry of a judgment of acquittal,
arguing that the evidence was insufficient to convict him
of solicitation. The district court granted the motion,
finding that the government failed to present sufficient
evidence for a reasonable juror to conclude that White
was guilty of criminal solicitation, and that White’s
speech was protected by the First Amendment. The
government appeals that ruling, and White has filed a
cross-appeal urging a new trial if we reverse the judg-
ment of acquittal. After reviewing the trial record, we
conclude that a rational jury could have found beyond
a reasonable doubt that, based on the contents of the
website, its readership, and other contextual factors,
White intentionally solicited a violent crime against
Juror A by posting Juror A’s personal information on
his website. Criminal solicitation is not protected by the
First Amendment, and so we reverse White’s acquittal
and reinstate his conviction. Also, because White is not
entitled to a new trial, we remand for sentencing.
I. BACKGROUND
To best understand the facts of this case it is helpful
to have some basic familiarity with another case
involving Matthew Hale, a white supremacist convicted
Nos. 11-2150 & 11-2209 3
of solicitation under 18 U.S.C. § 373. See United States v.
Hale, 448 F.3d 971 (7th Cir. 2006) (per curiam).
The defendant in that case led a white supremacist
organization known as the World Church of the Creator
(“World Church”). A religious organization operating
under the name “Church of the Creator” sued World
Church for trademark infringement in federal court.
Both parties moved for summary judgment and Judge
Joan Lefkow granted the motion of Hale’s organization,
World Church. But we reversed and remanded for judg-
ment to be entered in favor of Church of the Creator.
After Judge Lefkow abided by our instructions, Hale
informed his followers that they were “in a state of war
with this federal judge.” Id. at 978. He then sent an
email to Tony Evola, a cooperating witness who had
infiltrated World Church, requesting the home address
of Judge Lefkow. One day later, Evola and Hale met.
Evola asked Hale if they were “gonna exterminate the
rat.” Hale answered, “I’m gonna fight within the law” but
“that information’s been . . . provided” so “[i]f you wish”
to “do anything yourself, you can, you know?” Evola
responded, “Consider it done,” to which Hale replied,
“Good.” Id. at 979. A jury convicted Hale for, among
other things, criminally soliciting harm to Judge Lefkow,
and he received a sentence of 40 years in prison. Id. at 982.
The foreperson of that jury was “Juror A,” the target of
the alleged solicitation in this case.
William White is an avid supporter of Matthew Hale.
An active white supremacist, White created and served
as editor of a website, Overthrow.com, which sought to
advance that cause. On February 28, 2005, only hours
4 Nos. 11-2150 & 11-2209
after Judge Lefkow’s husband and mother were tragically
murdered, 1 White applauded the crimes on his website.
He wrote, “Everyone associated with the Matt Hale trial
has deserved assassination for a long time . . . . In my
view, it was clearly just, and I look forward to seeing
who else this new white nationalist group of assassins
kills next.” Not long afterward, in March 2005, White
described an email, circulating on the internet, that con-
tained the personal identification information of the
FBI agents and prosecutors (“scumbags”) who investi-
gated and prosecuted Hale. White noted that they
might be the “next targets of the unknown nationalist
assassin who killed the family of Chicago Judge Joan
Lefkow.” He explained on his website that he would not
disclose the agents’ and prosecutors’ personal informa-
tion, however, because there was “so great a potential
for action linked to such posting.”
On February 13, 2007, White published on his website
the address of Elie Wiesel, an internationally known
Holocaust survivor, “In Case Anyone Was Looking For
Him.” White praised Eric Hunt, “a fan of [the] website,” as
a “loyal soldier” for attacking Wiesel a few days earlier, on
February 1. White presented similar information about
six black teenagers in Jena, Louisiana in September 2007,
suggesting that they be “lynch[ed]” for their involve-
ment in a schoolyard fight that garnered national atten-
tion due to its racial overtones. He continued this trend
in 2008 by posting the personal information of individ-
1
Neither Hale nor White (nor anyone connected to either
of them) was responsible for the murders.
Nos. 11-2150 & 11-2209 5
uals whom he labeled “anti-racist” or “enemies” of
white supremacy. One such post, “Kill Richard
Warman,” advocated the murder of a noted Canadian
civil rights lawyer. That particular message could be
accessed from any page on the website because it could
be retrieved using a hyperlink located in a static column
of the site, called “Top Articles.” Another post—“Kill
This Nigger?”—contained images of and articles about
then-presidential candidate Barack Obama. One article
displayed a photograph of the presidential candidate
with swastika-shaped crosshairs superimposed over
his face,2 and stated that “White people must deny
[Barack Obama] the presidency . . . by any means neces-
sary.”
Those postings, however, were mere prelude to the
conduct that got White indicted for criminal solicitation.
On September 11, 2008, White authored a post titled,
“The Juror Who Convicted Matt Hale.” In it, he disclosed
personal, identifying information about Juror A. The
post read:
Gay anti-racist [Juror A] was a juror who played
a key role in convicting Matt Hale. Born [date],
[he/she] lives at [address] with [his/her] gay
black lover and [his/her] cat [name]. [His/Her]
2
White moved in limine to prevent these posts from reaching
the jury, but the district court denied his request because
the posts evidenced White’s intent, or were direct evidence
of the “strongly corroborative circumstances” required under
§ 373, or both.
6 Nos. 11-2150 & 11-2209
phone number is [phone number], cell phone
[phone number], and [his/her] office is [phone
number].
The post further stated that the “gay Jewish [Juror A],
who has a gay black lover and ties to professional anti-
racist groups, and who also personally knew [an individ-
ual] killed by Ben Smith, a follower of Hale, was allowed
to sit on his jury without challenge and played a leading
role in inciting both the conviction and harsh sentence
that followed.” The entry featured a color photograph
of Juror A.
One day later, White uploaded an identical message to
a different portion of the website. The post carried the
title: “[Juror A] Updated-Since They Blocked the first
photo.” Apparently, Juror A’s employer had blocked
public access to the page on its website that contained
information about Juror A and the color photograph of
the juror that appeared in White’s first post. White’s
second post stated, “Note that [Employer] blocked much
of [Juror A’s] information after we linked to [his/her]
photograph.” The photograph of Juror A that appeared
was embedded in the Overthrow server so that only
White could remove it.
On October 22, 2008, a grand jury indicted White for
soliciting the commission of a violent federal offense
against Juror A in violation of 18 U.S.C. § 373. The in-
dictment charged that White had “solicited and other-
wise endeavored to persuade another person to injure
Juror A on account of a verdict assented to by Juror A,
in violation of Title 18, United States Code 1503.” See also
Nos. 11-2150 & 11-2209 7
18 U.S.C. § 1503 (outlawing injuring or threatening to
injure a federal juror). A grand jury returned a super-
seding indictment against White on February 10, 2009.
White moved to dismiss the indictment, and the district
court granted his motion after finding that White’s
internet postings were protected speech and that the
indictment failed to sufficiently allege “corroborating
circumstances” of White’s criminal intent.
The government appealed. We reversed because the
indictment was facially valid and White’s First Amend-
ment rights were protected by the government’s burden
to prove beyond a reasonable doubt that White had the
requisite intent for criminal solicitation. United States
v. White, 610 F.3d 956, 961 (7th Cir. 2010) (per curiam).
As we explained:
The government informed us at oral argument
that it has further evidence of the website’s reader-
ship, audience, and the relationship between
White and his followers which will show the
posting was a specific request to White’s fol-
lowers, who understood that request and were
capable and willing to act on it. This evidence
is not laid out in the indictment and does not
need to be. The existence of strongly corroborating
circumstances evincing White’s intent is a jury
question. . . . The government has the burden to
prove, beyond a reasonable doubt, that White
intended, through his posting of Juror A’s per-
sonal information, to request someone else to
harm Juror A. After the prosecution presents its
8 Nos. 11-2150 & 11-2209
case, the court may decide that a reasonable
juror could not conclude that White’s intent was
for harm to befall Juror A, and not merely elec-
tronic or verbal harassment.
Id. at 962 (internal citations omitted).
On remand, White was tried before an anonymous
jury. The government offered as evidence the postings
made by White that we described above. The government
also called several witnesses. FBI Special Agent Paul
Messing testified that he installed highly sophisticated
computer software on the computer and server that
agents seized from White. The software allowed the
FBI to search for specific articles and words that
White personally posted on the Overthrow website.
Officer John Dziedzic explained that an internet user
who visited the Overthrow website before the site had
been disabled could have seen all of White’s postings.
The government also presented the testimony of
Juror A. That testimony established that at approximately
9:30 a.m. on September 11, 2008, Juror A received a
phone call from a telephone registered to White’s wife.
The male caller asked Juror A to confirm Juror A’s name,
date of birth, address, and service on the jury that con-
victed Hale. The caller did not, however, threaten Juror A.
Less than thirty minutes after the call was disconnected,
White posted Juror A’s personal information on Over-
throw. Juror A almost immediately began receiving
harassing text messages. The messages conveyed things
like “sodomize Obama,” “Bomb China,” “kill McCain,”
and “cremate[] Jews.” Juror A testified that these mes-
Nos. 11-2150 & 11-2209 9
sages were “all . . . really upsetting.” Juror A reported
receiving text messages of the same nature for the next
few days. Juror A was not personally threatened, stalked,
or physically harmed after White’s initial post.
FBI Special Agent Maureen Mazzola also testified at
trial. She described what an internet user who viewed
the Overthrow website on September 11, 2008 would
have seen. According to her, on that day the site’s
visitors would have immediately been directed to the
post about Juror A. They would not have been able to
see White’s other posts unless they accessed them
via hyperlink or viewed other portions of the website.
According to Agent Mazzola, a user would have “to be
either looking for it or reading every single article on
the website” to access White’s other posts.
The last two witnesses the government called to
testify were Phil Anderson and Michael Burks. Both
were former members of the American National
Socialist Workers Party (“ANSWP”), a white supremacist
organization that White organized and directed. After
his home was searched and his computer seized,
White asked Anderson to reach out to other white sup-
remacists to find out if they were aware of any plans
to harm Juror A. White expressed concern that “someone
may be trying to do something” to Juror A. Anderson
reported back that his associates had not seen the Juror A
post and were not aware of any plans to harm Juror A.
On October 29, 2008, White was arrested. After his
arrest, he sent letters to both Anderson and Burks. White
requested that Anderson testify regarding “the fact that
10 Nos. 11-2150 & 11-2209
you have never done anything criminal, and do not
interpret articles on Overthrow.com as criminal instruc-
tions.” And White asked Burks to testify about ANSWP’s
“rejection of criminal activity and violent crime,” and
thanked him for his support. At trial, both Anderson
and Burks maintained that White never instructed
them to commit criminal acts and they never inter-
preted anything he posted on Overthrow as instructions
to harm Juror A in particular.
Burks, however, acknowledged that some violent
white supremacists—of whom White had knowledge
and approved—might have looked to Overthrow for
criminal instructions. He cited the Richard Warman post
as an example. According to Burks, in addition to
authoring that post, White disclosed Warman’s infor-
mation during a radio show and stated at that time
that “this bastard has lived way too long. If somebody
wants to kill him, here’s his address.” Burks testified
that White repeated this sentiment “two or three times,”
and White “really didn’t care if something did happen.”
Burks interpreted the Warman, Wiesel, and Jena Six
posts as requests that people go out and do violent
things. But he expressly denied ever seeing anything
on Overthrow or hearing anything from White that he
understood as a call to harm Juror A.
At the close of the evidence, the district court instructed
the jury that the government must prove the following
elements beyond a reasonable doubt:
First, that the defendant solicited, commanded,
induced, or otherwise endeavored to persuade
another person to carry out a violent federal crime.
Nos. 11-2150 & 11-2209 11
Second, with strongly corroborative circum-
stances, that the defendant intended for another
person to commit a violent federal crime.
The court also crafted a First Amendment instruction,
which combined two of White’s six proposed First Amend-
ment instructions. The court explained:
The First Amendment protects vehement,
scathing, and offensive criticism of others; how-
ever, a solicitation, command, inducement, or
endeavor to persuade another to engage in con-
duct constituting a violent felony as defined in
these instructions is not protected by the First
Amendment.
If the purpose of the speaker or the tendency of his
words are directed to ideas or consequences re-
mote from the commission of the criminal act,
then the speech is protected by the First Amend-
ment.
Speech is protected unless both the intent of the
speaker . . . and the tendency of his words was
to produce or incite an imminent lawless act.
An imminent lawless act is one that is likely to
occur.
A statement which is mere political hyperbole
or an expression of opinion does not constitute
a solicitation.
If you find that the defendant’s statements were
no more than an indignant or extreme method of
12 Nos. 11-2150 & 11-2209
stating political opposition to the juror in
the Matthew Hale case, then you are justified in
finding that no solicitation was, in fact, made
and you may find the defendant not guilty.
The jury convicted White of soliciting a violent federal
crime against Juror A. White filed a post-trial motion
for judgment of acquittal, requesting in the alternative
a new trial. The district court ruled that the government
failed to present sufficient evidence to sustain White’s
conviction. The court found that White’s posts were
not objective solicitations and nothing on the website
“transformed” them into solicitous instructions. Addi-
tionally, the court found that the government failed to
present adequate evidence of section 373’s “strongly
corroborative” circumstances, which is necessary under
the statute to prove intent. Finally, the court held that
because the government did not prove White’s criminal
intent beyond a reasonable doubt, White’s posts were
protected speech under the First Amendment. The
district court granted White’s Rule 29 motion and condi-
tionally denied his request for a new trial. Both the gov-
ernment and White appeal.
II. ANALYSIS
Subsection (a) of 18 U.S.C. § 373 states, in relevant part,
that:
Whoever, with intent that another person engage
in conduct constituting a felony that has as an
element the use, attempted use, or threatened use
of physical force against property or against the
Nos. 11-2150 & 11-2209 13
person of another in violation of the laws of the
United States, and under circumstances strongly
corroborative of that intent, solicits, commands,
induces, or otherwise endeavors to persuade
such other person to engage in such conduct,
shall be imprisoned . . . .
The underlying felony White allegedly solicited was
harm to Juror A, which is prohibited by 18 U.S.C. § 1503(“Whoever . . . by threats or force . . . endeavors to influ-
ence, intimidate, or impede any grand or petit juror . . . or
injures any such grand or petit juror . . . on account of any
verdict or indictment assented to by him, or on account
of his being or having been such juror . . . shall be
punished . . . .”). So to convict White of solicitation, the
government had to prove beyond a reasonable doubt:
(1) with “strongly corroborative” circumstances that
White intended for another person to harm Juror A; and
(2) that White solicited, commanded, induced, or other-
wise tried to persuade the other person to carry out that
crime. 18 U.S.C. § 373(a); see also Hale, 448 F.3d at 982(“[T]he 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.”).
A. The District Court’s Judgment of Acquittal Must Be
Reversed Because a Reasonable Jury Could Have
Convicted White of Criminal Solicitation
A judgment of acquittal must be granted when “the
evidence is insufficient to sustain a conviction.” Fed. R.
14 Nos. 11-2150 & 11-2209
Crim. P. 29(a). Our review is de novo. United States v.
Presbitero, 569 F.3d 691, 704 (7th Cir. 2009). Our job, how-
ever, is not to “reweigh the evidence nor second-guess
the jury’s credibility determinations.” United States v.
Tavarez, 626 F.3d 902, 906 (7th Cir. 2010). Rather, we
view the evidence in the light most favorable to the gov-
ernment and ask whether any rational jury could have
found the essential elements of the charged crime
beyond a reasonable doubt. Presbitero, 569 F.3d at 704. “We
will set aside a jury’s guilty verdict only if ‘the record
contains no evidence, regardless of how it is weighed,’
from which a jury could have returned a conviction.” Id.(quoting United States v. Moses, 513 F.3d 727, 733 (7th
Cir. 2008)). But the defendant “bears a heavy burden
on appeal, as he must demonstrate that no rational trier
of fact could decide beyond a reasonable doubt” that
he committed the offense charged. See United States v.
Cervante, 958 F.2d 175, 178 (7th Cir. 1992).
We begin our analysis with our instructions to the
district court on remand: “After the prosecution pre-
sents its case, the court may decide that a reasonable
juror could not conclude that White’s intent was for
harm to befall Juror A, and not merely electronic or
verbal harassment.” White, 610 F.3d at 962. The govern-
ment bore not only the burden of proving White’s inten-
tional solicitation, but it also had to prove beyond a
reasonable doubt the objective of that solicitation: harm
or the threat of harm to Juror A, not mere electronic or
verbal harassment. Id.; cf. United States v. Rahman, 34 F.3d
1331, 1337 (7th Cir. 1994) (requiring the government
to show with “strongly corroborative” circumstances
that the defendant “intended for [the solicitee] to extort
Nos. 11-2150 & 11-2209 15
and rob [the victim] of $60,000,” and that the defendant
“solicited, commanded, induced, or otherwise tried to
persuade [the solicitee] to carry out the extortion and
robbery.” (emphasis added)).
A reasonable jury could have found that the govern-
ment met this burden. Whether White’s post was a crimi-
nal solicitation depended on context, and the govern-
ment provided ample evidence of such context from
which a rational jury could have concluded that the post
was an invitation for others to harm Juror A, though
fortunately no one accepted the invitation. The post
attributed to Juror A characteristics intended to make
the target loathed by readers of White’s neo-Nazi
website: a Jew, a homosexual with a black lover, and
above all the foreman of the jury that had convicted
Overthrow.com’s hero, Matthew Hale—an anti-Semitic
white supremacist—of soliciting the murder of a federal
judge. And whereas White previously refrained from
“republish[ing] the personal information” of others
involved in the Hale trial because, as White acknowl-
edged, “there [was] so great a potential for action linked
to such posting,” White expressly published Juror A’s
personal information, including Juror A’s photograph,
home address, and telephone numbers.
The post has a context created by previous posts on the
website that had solicited the murder of Barack Obama,
Richard Warman (a Canadian civil rights lawyer
and the bane of hate groups), Elie Wiesel, and six black
teenagers known as the “Jena 6.” Other posts had con-
gratulated murderers or urged the murder of enemies
16 Nos. 11-2150 & 11-2209
defined in terms that would embrace Juror A. All
that was missing was an explicit solicitation to murder
Juror A. But the description summarized above
would have made Juror A seem to loyal readers of
Overthrow.com as being at least as worthy of assassina-
tion as Richard Warman, who had been described in a
post, published only a few months before the Juror A
post, as “Richard, the sometimes Jewish, sometimes not,
attorney behind the abuses of Canada’s Human Rights
Tribunal,” who “should be drug out into the street
and shot, after appropriate trial by a revolutionary
tribunal of Canada’s white activists. It won’t be hard to
do, he can be found, easily, at his home, at [address].”
And Juror A could be found at home just as easily
because White posted Juror A’s personal contact infor-
mation along with the denunciation.
The “abuses” of the Canadian Human Rights Tribunal
had been left unspecified in the denunciation of Warman,
whereas Juror A was identified as instrumental in the
conviction of the hero Hale: If “all [Juror A] was . . . was
another anonymous voice in a dirty Jewish mob,
screaming for blood and for the further impoverish-
ment of the white worker . . . [he/she] would hardly be
of note. But [Juror A] is something more. [He/She] was
not only a juror at the nationally publicized trial of
Matt Hale, but the jury foreman, and the architect of both
Hale’s conviction and his extreme and lengthy 40-year
sentence.” If Warman should be killed, then a fortiori
Juror A should be killed, or at least injured. White
didn’t have to say harm Juror A. All he had to do and
did do to invite violence was to sketch the characteristics
Nos. 11-2150 & 11-2209 17
that made Juror A a mortal enemy of White’s neo-Nazi
movement and to publish Juror A’s personal contact
information.
The fact that White made an effort to discourage as-
sassination attempts against Juror A when law enforce-
ment moved against his website shows at a minimum
that he knew he was playing with fire. But a reasonable
jury could have also interpreted such evidence as intent
to solicit violence against Juror A followed by a change
of mind when he realized that if someone harmed Juror A
he could get in trouble. There was enough evidence
of White’s intent to solicit the murder of, or other
physical violence against, Juror A, to justify a rea-
sonable jury in convicting him.
It’s true that the posts that establish the context that
makes the solicitation to violence unmistakable were
not links to the posts on Overthrow.com about Juror A.
That is, they were not words or phrases in blue in the
posts that if clicked on by the reader would appear
on the reader’s computer screen. Some of the
explicit solicitations to murder had been published on
Overthrow.com months, even years, earlier, though
others were recent. The Juror A posts had appeared
between September 11 and October 3, 2008, the postings
regarding Wiesel and the Jena 6 between February 3 and
September 20, 2007. But the Warman and Obama
death threats were recent—March 26, 2008 and Septem-
ber 9, 2008 respectively—the latter threat having been
posted two days before the first threat against Juror A.
Regardless of when these other still-accessible posts
were technically created, a reasonable jury cannot be
18 Nos. 11-2150 & 11-2209
expected to ignore the audience, who may not have
been as concerned about such chronological specifics.
Readers of Overthrow.com were not casual Web
browsers, but extremists molded into a community by
the internet—loyal and avid readers who, whether or
not they remember every specific solicitation to assas-
sination, knew that Overthrow.com identified hateful
enemies who should be assassinated. A reasonable jury
could infer that members of the Party were regular
readers of the Overthrow website, which prominently
displayed links to the Party’s own website, to its
streaming radio, and to its hotline. One witness testified
that he learned of the Party through Overthrow.com. White
identified one reader in a post on the website as a “loyal
soldier” and “fan of this website,” and there is similar
language in other posts. Two members of the party
who testified made clear their familiarity with the
contents of the website over a period of years. Though
these members specifically denied interpreting White’s
post as an invitation to harm Juror A, a reasonable jury
could have thought, based on White’s reaching out to
them for support following the search of White’s home,
that they were biased in White’s favor and therefore
skewed their testimony in order to protect a fellow su-
premacist.
The government also established “strongly corrobora-
tive circumstances” of White’s intent to urge the killing
of, or harm to, Juror A. Typically, the government will
satisfy its burden of strongly corroborating the de-
fendant’s intent by introducing evidence showing that
the defendant: (1) offered or promised payment or some
other benefit to the person solicited; (2) threatened to
Nos. 11-2150 & 11-2209 19
punish or harm the solicitee for failing to commit the
offense; (3) repeatedly solicited the commission of the
offense or expressly stated his seriousness; (4) knew or
believed that the person solicited had previously commit-
ted a similar offense; or (5) acquired weapons, tools or
information, or made other preparations, suited for use
by the solicitee. United States v. Gabriel, 810 F.2d 627,
635 (7th Cir. 1987) (citing S. Rep. No. 307, 97th Cong., 1st
Sess. 183 (1982)). These factors are not exclusive or con-
clusive indicators of intent, id., but they are representa-
tive examples of the types of circumstantial evidence
that a rational jury could rely on to corroborate the de-
fendant’s intent. See Hale, 448 F.3d at 983 (“The existence
of strongly corroborating circumstances is a question of
fact for the jury.” (citation omitted)).
Such circumstantial evidence, much of which is
already recounted above, exists here. In posts on his
website directed at his neo-Nazi readers, White wrote
that “everyone associated with the Matt Hale trial has
deserved assassination for a long time;” he expressly
solicited violence against Obama, Warman, Wiesel, and
the Jena 6; he praised Wiesel’s assailant and appreciated
that White’s expressed views “may have played a role
in motivating” the assailant; he went to the trouble of
obtaining and publishing Juror A’s contact information
after expressly recognizing the “great [] potential for
action” linked to the posting of personal contact infor-
mation of other “scumbags” involved in the Hale trial;
and after learning of the FBI’s investigation he demon-
strated awareness that his posts might induce readers
to commit a violent act against Juror A.
20 Nos. 11-2150 & 11-2209
Though the government did not present a specific
“solicitee,” it was unnecessary to do so given the very
nature of the solicitation—an electronic broadcast
which, a reasonable jury could conclude, was specifically
designed to reach as many white supremacist readers
as possible so that someone could kill or harm Juror A.
18 U.S.C. § 373 requires proof of intent “that another
person” commit the felony, and White’s desire for any
reader to respond to his call satisfies this requirement.
See White, 610 F.3d at 960 (“a specific person-to-person
request is not required” (citing United States v. Rahman,
189 F.3d 88, 117-18 (2d Cir. 1999)).
White rightfully emphasizes that the First Amend-
ment protects even speech that is loathsome. But
criminal solicitations are simply not protected by the
First Amendment. See id.; Chaplinsky v. New Hampshire,
315 U.S. 568, 572 (1942) (“[T]hose [words] which by
their very utterance inflict injury or tend to incite an
immediate breach of the peace” are not protected by
the First Amendment); see also United States v. Williams,
553 U.S. 285, 297 (2008) (“Offers to engage in illegal
transactions are categorically excluded from First Amend-
ment protection.” (citations omitted)). A reasonable jury
could have found that White’s posts constituted “a pro-
posal to engage in illegal activity” and not merely
“the abstract advocacy of illegality.” See id. at 298-99.
Accordingly, the First Amendment provides no shelter
for White’s criminal behavior.
For the above reasons, White’s acquittal must be re-
versed.
Nos. 11-2150 & 11-2209 21
B. White Is Not Entitled to a New Trial
“If the court enters a judgment of acquittal after a
guilty verdict, the court must also conditionally
determine whether any motion for a new trial should be
granted if the judgment of acquittal is later vacated or
reversed.” Fed. R. Crim. P. 29(d)(1). Upon acquitting
White, the district court, pursuant to this rule, condi-
tionally denied White’s motion for a new trial, which
White now challenges as an abuse of discretion. See
United States v. Wilson, 237 F.3d 827, 831-32 (7th Cir.
2001). None of White’s arguments have merit.
1. Anonymous Jury
White first argues that the district court erred in
empanelling an anonymous jury. “A court weighing the
need for an anonymous jury must . . . balance the defen-
dant’s interest in preserving the presumption of inno-
cence and in conducting a useful voir dire against the
jurors’ interest in their own security and the public’s
interest in having a jury assess the defendant’s guilt or
innocence impartially.” United States v. Mansoori, 304
F.3d 635, 650 (7th Cir. 2002) (citations omitted).
Factors bearing on the propriety of an anony-
mous jury include the defendant’s involvement
in organized crime; his participation in a group
with the capacity to harm jurors; whether he
previously has attempted to interfere with the
judicial process; the severity of the punishment
that the defendant would face if convicted; and
22 Nos. 11-2150 & 11-2209
whether publicity regarding the case presents
the prospect that the jurors’ names could be-
come public and expose them to intimidation
or harassment.
Id. at 650-51. “We review the decision to use an anony-
mous jury only for an abuse of discretion, remaining
particularly deferential to the district court’s substantial
discretion in this area.” United States v. Morales, 655 F.3d
608, 621 (7th Cir. 2011) (citations omitted). Even if the
district court errs in empanelling an anonymous jury,
a new trial is unwarranted where such error was
harmless, such as when voir dire is “extremely thorough,”
Mansoori, 304 F.3d at 652, or when the jurors are told
that their names are withheld “to prevent out-of-
court contact, not out of concern for juror safety,”
Morales, 655 F.3d at 623, in combination with other
factors mitigating prejudice.
White almost exclusively emphasizes the alleged
lack of “some evidence indicating that intimidation is
likely.” Mansoori, 304 F.3d at 651. But such evidence
could not be clearer here. It was certainly clear by the
time the district court granted the government’s motion
to empanel an anonymous jury that White had posted
the personal contact information—of a juror—also in a
case involving a white supremacist, which resulted
in harassment and intimidation. White also does not
challenge the district court’s finding that his target audi-
ence had previously committed acts of violence against
their perceived enemies, particularly those involved in
the justice system, or the fact that there had been some
Nos. 11-2150 & 11-2209 23
publicity of the case, exacerbating the risk that the jurors’
identities would become public. The district court’s
consideration of these factors in deciding to empanel an
anonymous jury was therefore not an abuse of discretion.
Though unnecessary to address, we also note the
absence of harm. White argues that the jury’s anonymity
predisposed it to believe that White was dangerous
and therefore a criminal, and emphasizes Juror 8’s ex-
pression of concern about putting his name on the
juror sign-in sheet. But the district court assured Juror 8
that the sign-in sheet was not public and that it could
be sealed, and it confirmed that Juror 8 did not discuss
his concern with any other juror. Most importantly, the
court asked him whether he could still render a fair
verdict, and he responded “Yes.” We agree with the
district court that “some concerns on the part of jurors
were likely unavoidable” given the context, but the
district court properly ensured that Juror 8’s specific
concerns would not give rise to improper bias against
White by confirming that he could be impartial. The
district court also told the jurors that they were kept
anonymous in order to ensure a fair and impartial trial
and to prevent contact with the parties and lawyers; it
did not mention security as a reason. And White does
not challenge the rigor of the district court’s voir dire,
or any other measure taken by the court to ensure him
a fair trial. Accordingly, even if the district court erred
in empanelling an anonymous jury, such error was harm-
less.
24 Nos. 11-2150 & 11-2209
2. Admission of Rule 404(b) Evidence
Next, White challenges the district court’s Rule 404(b)
admission of his posts concerning people other than
Juror A. Rule 404(b) prohibits the admission of evidence
of “prior bad acts to show that the defendant’s character
is consistent with a propensity to commit the charged
crime; however, it allows the court to admit evidence of
a defendant’s prior [acts] for other permissible, non-
propensity purposes,” such as intent. United States v.
Perkins, 548 F.3d 510, 513-14 (7th Cir. 2008). In order to
be admissible, such evidence must:
(1) be directed toward establishing a matter in
issue other than the defendant’s propensity to
commit the crime charged; (2) show that the
other act is similar enough and close enough in
time to be relevant to the matter in issue; (3) be
sufficient to support a jury finding that the defen-
dant committed the similar act; and (4) have
probative value that is not substantially out-
weighed by the danger of unfair prejudice.
Id. This court reviews a district court’s Rule 404(b) admis-
sion for abuse of discretion. Id. at 513.
Taking the last prong first, we note that the probative
value of these posts was particularly strong, in that they
helped the government to satisfy its burden of producing
evidence of circumstances “strongly corroborative” of
White’s intent (and for that reason, the first prong is
also satisfied). Though there was an undeniable danger
that the jury would be inflamed against him when
exposed to his “noxious views,” Hale, 448 F.3d at 986,
Nos. 11-2150 & 11-2209 25
the jury had already been exposed to White’s white
supremacist views from other evidence that was unques-
tionably admissible, and White never sought a specific
limiting instruction. The district court’s conclusion
that such danger did not “substantially outweigh” the
strong probative value of these posts was therefore not
an abuse of discretion. While the admission of prior
posts might be improper in another electronic criminal
solicitation case, we simply cannot say that the district
court, in its consideration of the unique facts and eviden-
tiary context, erred in this one. See id. at 985 (“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.”).
As for the remaining factors, though several of these
posts were created a year or more before the Juror A
post, they were nonetheless “close enough in time to be
relevant” in that they were contemporaneously available
at the time of the post about Juror A. And there is no
dispute that these posts were made by White. Accord-
ingly, the district court’s Rule 404(b) admission of
White’s posts concerning people other than Juror A
was not an abuse of discretion.
3. White’s Proposed Jury Instructions Concerning
the First Amendment
White finally argues that a new trial is warranted be-
cause the district court failed to include four of his pro-
posed jury instructions concerning the First Amendment.
26 Nos. 11-2150 & 11-2209
Briefly summarized, these include: an instruction that
speech is protected when it incites imminent lawless
action, an instruction that speech may not be banned
simply because it is unpopular, an instruction that
speech scrutinizing people involved in the prosecution
of crimes (e.g., jurors) is protected, and an instruction
that speech approving of past violence by others is pro-
tected.
Plain error review applies when counsel fails to
“object, on the record, to the judge’s refusal to tender the
defendant’s instructions [and] clearly state the reasons
for his or her objections.” United States v. Douglas, 818
F.2d 1317, 1320 (7th Cir. 1987); see Fed. R. Crim. P. 30(d).
The government points out that after the court ex-
pressly made its instructions ruling and asked White’s
counsel, “Do you have any objections, by the way, . . . or
are you otherwise satisfied with the instructions?”, counsel
responded, “Judge, I’m pretty sure—I haven’t looked
at the other ones, but I’m satisfied with the elements
instruction that I think is the main one.” The govern-
ment therefore argues that no objection was made. White
counters that his proposed First Amendment instruc-
tions were vigorously debated, albeit before the district
court ruled on the instructions.
We have said that, so long as defense counsel “alert[s]
the court and the opposing party to the specific grounds
for the objection in a timely fashion,” then “[t]here is no
utility in requiring defense counsel to object again after
the court has made its final ruling.” United States v. James,
464 F.3d 699, 707 n.1 (7th Cir. 2006). But in the case of
Nos. 11-2150 & 11-2209 27
the court’s refusal to give a proposed instruction, some
of our cases have suggested that objections must be
made after a ruling is made, or at least after the district
court indicates how it intends to rule.3 See United States
v. Irorere, 228 F.3d 816, 825 (7th Cir. 2000) (objection
not preserved where defendant “did not object on the
record at the time the district court refused to give the
defendant’s proposed instruction”); United States v.
Green, 779 F.2d 1313, 1320 n.6 (7th Cir. 1985) (objection
not preserved where “the defendant originally argued
on behalf of his proposed instruction, but offered no
further comment, much less an objection” after court
adopted other instructions). And counsel can simply
object by stating that he or she objects and incor-
porates arguments previously made. See United States v.
Hollinger, 553 F.2d 535, 543 (7th Cir. 1977) (“While the
process of stating for the record that such pre-charge
objections are incorporated by reference is a somewhat
pro forma exercise, we are nevertheless of the opinion
that the better practice would be for counsel to see
that the record affirmatively shows that counsel has
renewed his specific objections by the incorporation
method.”); see also United States v. Requarth, 847 F.2d
1249, 1254 (7th Cir. 1988) (“Specific objections to instruc-
tions that are distinctly made at an instructions con-
ference may be incorporated by reference.”). It would
have been wise for White’s counsel to have at least
3
See Fed. R. Crim. P. 30(b) (“The court must inform the
parties before closing arguments how it intends to rule on
the requested instructions.”).
28 Nos. 11-2150 & 11-2209
objected and incorporated his previous arguments by
reference when the district court gave him an express
opportunity to do so after it had made its ruling on the
instructions. See generally Hollinger, 553 F.2d at 543(district court has discretion to determine when the
“distinct statement of the matter to which counsel objects
and the grounds of the objections are stated” pursuant
to Rule 30(d)).
In any event, we need not decide whether plain error
review applies, because we find that the district court
did not improperly exclude his proposed instructions
even on de novo review. See James, 464 F.3d at 707 (review
of district court’s refusal to give proposed jury instruc-
tions is de novo). “To be entitled to a particular theory
of defense instruction, the defendant must show the
following: (1) the instruction is a correct statement of
the law, (2) the evidence in the case supports the theory
of defense, (3) that theory is not already part of the
charge, and (4) a failure to provide the instruction
would deny a fair trial.” Id.Excluding White’s proposed jury instructions was not
improper. The district court essentially incorporated
White’s proposed instruction about speech being
protected unless it incites imminent lawless action, and
adopting any additional emphasis on that point as
White proposed could have been misleading because it
would have suggested that the solicitation of a non-imme-
diate crime was protected, when it is not. See White,
610 F.3d at 960 (“solicitations[] remain categorically
outside [the First Amendment’s] protection”). And the
Nos. 11-2150 & 11-2209 29
district court essentially incorporated White’s proposed
instruction about unpopular speech when it told the
jury that the “First Amendment protects . . . offensive
criticism of others,” and that speech that is nothing
more than an “indignant or extreme method of stating
political opposition to the juror in the Matthew Hale
case” was not criminal. This latter instruction also
captured White’s proposed instruction about the First
Amendment protecting speech that scrutinizes people
involved in the prosecution of crimes, such as jurors.
And White was not clearly denied a fair trial by the ex-
clusion of his proposed instruction concerning speech
approving of past violence by others. No reasonable
juror would interpret the district court’s instruction
about what solicitation means—“an endeavor to
persuade another to engage in conduct constituting a
violent felony”—to mean that mere approval of past
violence automatically translates into solicitation of
future criminal conduct.
The district court’s jury instructions concisely described
the protections of the First Amendment and correctly
informed the jury that criminal solicitations fall outside
its protection. See Trident Inv. Mgmt., Inc. v. Amoco Oil
Co., 194 F.3d 772, 780 (7th Cir. 1999) (“[w]e will not find
reversible error in jury instructions if, taken as a
whole, they fairly and accurately inform the jury about
the law”). The inclusion of White’s proposed instruc-
tions would have been unduly cumulative and poten-
tially confusing, and White points to no indication that
the jury failed to appreciate the protections of the First
Amendment, to the extent they were relevant in this
30 Nos. 11-2150 & 11-2209
criminal solicitation case. See DePaepe v. Gen. Motors
Corp., 33 F.3d 737, 743 (7th Cir. 1994) (“ ‘Inadequate jury
instructions are cause for reversal only if it appears that
the jury’s comprehension of the issues was so misguided
that one of the parties was prejudiced.’ ” (citation omit-
ted)).
Therefore, the district court’s exclusion of White’s
proposed jury instructions was not erroneous. White’s
argument that the cumulative impact of all the above
alleged errors warrants a new trial is also without merit.
III. CONCLUSION
For the reasons stated above, the judgment of acquittal
entered by the district court is R EVERSED, the convic-
tion is R EINSTATED, and the case is R EMANDED for sen-
tencing. White’s cross-appeal is D ISMISSED.
10-26-12