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United States v. Milbourn, No. 08-2525 (7th Cir. 04/07/2010)

Of all the things to burn in some-one’s yard, Kyle Milbourn chose a cross. Of all the places to burn that cross, they chose the front yard of a rented house that served as the home for three biracial children.

Eventually, Milbourn was charged with four counts: conspiracy to intimidate and interfere, because of the race of the occupants, with their right to occupy their home; a substantive charge of intimidation; using fire to commit a felony; and witness tampering. He was convicted after a jury trial on all four counts and sentenced to serve a term of 121 months. Today we resolve his appeal.

Milbourn’s primary argument on appeal is that the evidence was insufficient to support the jury finding (1) that he was motivated by the racial makeup of the people who lived in the Thrash home and (2) that the cross was burned to intimidate (or interfere), on account of race, with the Thrash family’s right to occupy their home.

For most of the last century, ever since the emergence of a reenergized Ku Klux Klan around 1915, cross burning has been recognized as a symbol of racial hatred. During one of the KKK’s first meetings, which took place on Georgia’s Stone Mountain in 1915, a cross was burned. Since that time, cross burning has been associated with the KKK and racial hatred. See Virginia v. Black, 538 U.S. 343 (2003), for a lengthy discussion about the history of cross burning, especially by the KKK.

The burning of a cross, of course, is “an age old symbol of racism.” United States v. Gresser, 935 F.2d 96, 101 (6th Cir. 1991). Also, several witnesses recalled that they heard Milbourn make derogatory comments about blacks. He frequently used the term “nigger” and at least once referred to a black child as a “niglet.” He even mentioned, in high school, that “it would be cool” to join the Ku Klux Klan. There was even more, but the reader, by now, has probably got the point. Without a shadow of a doubt, the evidence that Milbourn acted with a racial motive was more than sufficient to support the jury’s verdict.

Milbourn also argues that the evidence was not sufficient to show that he intended to threaten or intimidate the Thrash family. Burning a cross on the front yard of a biracial family is both threatening and an act of intimidation. United States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993) (“[T]he act of cross burning promotes fear, intimidation, and psychological injury.”), overruled in part on other grounds by United States v. Colvin, 353 F.3d 569 (7th Cir. 2003) (en banc).

Further, in cross burning cases, a jury may consider the victims’ reaction as an indication of threatening intent because “[e]vidence showing the reaction of the victim of a threat is admissible as proof that a threat was made.” United States v. J.H.H., 22 F.3d 821, 827 (8th Cir. 1994) (citing Watts v. United States, 394 U.S. 705, 708 (1969)). The government presented evidence of the Thrash family’s feelings of fear and anger after the cross burning. They sought counseling for their oldest child-who as we said was awake and saw the burning cross-and the family ultimately moved out of the home. Overall, there was plenty of evidence to support a jury verdict that Milbourn intended to threaten or interfere with the Thrash family’s occupancy of their home.

Milbourn also argues that the government engaged in prosecutorial misconduct during closing arguments.  Because Milbourn did not object during closing arguments, to prevail, Milbourn must establish “not only that the remarks denied him a fair trial, but also that the outcome of the proceedings would have been different absent the remarks.” United States v. Sandoval, 347 F.3d 627, 631 (7th Cir. 2003).

Milbourn argues that the prosecutor’s statements during closing arguments met this stringent standard. The prosecutor said, “[W]e’ve never claimed during this trial he’s a member of any organization [Ku Klux Klan and Aryan Nation] of any kind. He may aspire to be. Based on the evidence you’ve heard, I think that’s something that can be concluded. ”  We think the prosecutor’s statement that Milbourn “may aspire to be” a part of the KKK or the Aryan Nation was a reasonable inference from the evidence in the record. There was nothing objectionable about the comment. See United States v. Young, 470 U.S. 1, 8 & n.5 (1985).

For these reasons, the judgment of the district court is AFFIRMED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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