USA v. William White, 09-2916. 

A superseding indictment alleged that William White was the founder and content provider of a website that posted personal information about a juror who served on the Matthew Hale jury, along with postings calling for the use of violence on enemies of white supremacy. In connection with these postings, White was charged with soliciting a crime of violence in violation of 18 U.S.C. § 373. The district court dismissed the indictment, holding that White's internet posting could not give rise to a violation under § 373 because it was protected by the First Amendment.

Because we find that the indictment is legally sufficient to state an offense, we reverse the district court's dismissal.

According to the government's indictment, William White created and maintained the website Overthrow.com. Overthrow.com was affiliated with the "American National Socialist Workers Party," an organization comprised of white supremacists who "fight for white working people" and were "disgusted with the general garbage" that the white supremacist movement had attracted. White used the website to popularize his views concerning "non-whites, Jews, homosexuals, and persons perceived by white supremacists as acting contrary to the interests of the white race." On multiple occasions, White advocated that violence be perpetrated on the "enemies" of white supremacy and praised attacks on such enemies.

A repeated topic on his website was Matthew Hale, the leader of a white supremacist organization known as the World Church of the Creator. In January 2003, Hale was charged with soliciting the murder of a federal district court judge and obstruction of justice. Hale was convicted of two counts of obstruction of justice and one count of solicitation and sentenced to 480 months' imprisonment.

Specifically related to the Matthew Hale trial, White wrote on his website in March 2005 that "everyone associated with the Matt Hale trial has deserved assassination for a long time." He also wrote a posting naming individuals involved or related in some way to Hale's conviction.\

On September 11, 2008, White posted personal information about the foreperson of the jury in the Hale trial ("Juror A"). At the time of the posting, Overthrow.com was an active website, and as such, each link and posting was contemporaneously accessible. So, a reader of this September 11 posting would have had access to the past posts about Hale, Hale's trial, and other calls for violence against "anti-racists." The September 11 entry by White was entitled "The Juror Who Convicted Matt Hale." It identified Juror A by name, featured a color photograph of Juror A and stated the following:

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] phone number is [phone number], cell phone [phone number], and [his/her] office is [phone number].

On the following day, White posted a follow-up entry entitled "[Juror A] Update-Since They Blocked the first photo." This posting contained all the same information as above, with the added sentence, "Note that [University A] blocked much of [Juror A's] information after we linked to [his/her] photograph."

On February 10, 2009, the grand jury returned a superseding indictment, maintaining the single charge of solicitation and adding additional examples of the circumstances corroborating the defendant's intent to solicit a crime of violence against Juror A.

White moved to dismiss the superseding indictment on the grounds that it violated the First Amendment, and on July 22, 2009, the district court granted White's motion to dismiss. The government timely appealed.

A. Indictment Valid on Its Face

The government argues on appeal that the superseding indictment is legally sufficient to charge the offense of solicitation. We review questions of law in a district court's ruling on a motion to dismiss an indictment de novo. United States v. Greve, 490 F.3d 566, 570 (7th Cir. 2007). An indictment is legally sufficient if it (1) states all the elements of the crime charged; (2) adequately informs the defendant of the nature of the charges so that he may prepare a defense; and (3) allows the defendant to plead the judgment as a bar to any future prosecutions. See Fed. R. Crim. P. 7(c)(1); United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000). An indictment is reviewed on its face, regardless of the strength or weakness of the government's case. United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988).  One that "tracks" the words of a statute to state the elements of the crime is generally acceptable, and while there must be enough factual particulars so the defendant is aware of the specific conduct at issue, the presence or absence of any particular fact is not dispositive. United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000).

Applying these standards, the indictment here is legally sufficient.

The indictment here tracks the language of the statute, and lists each element of the crime. The indictment properly charges a federal solicitation because injuring a juror for rendering a verdict is a federal offense under 18 U.S.C. § 1503. Finally, by adding factual allegations and dates, it makes White aware of the specific conduct against which he will have to defend himself at trial.

In judging the sufficiency of this indictment, we do not consider whether any of the charges have been established by evidence or whether the government can ultimately prove its case. United States v. Sampson, 371 U.S. 75, 78-79 (1962).   We only look to see if an offense is sufficiently charged, and on its face, this indictment adequately performs that function.

B. No First Amendment Violation

Having found that the face of the indictment is legally sufficient to charge White with solicitation, our inquiry would ordinarily end. But the district court held that the indictment's allegations could not support a prosecutionunder 18 U.S.C. § 373 because White's internet posting was speech protected by the First Amendment. As detailed below, this potential First Amendment concern is addressed by the requirement of proof beyond a reasonable doubt at trial, not by a dismissal at the indictment stage.

The First Amendment removes from the government any power "to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quotation marks omitted). Even speech that a "vast majority of its citizens believe to be false and fraught with evil consequence[s]" cannot be punished. Whitney v. California, 274 U.S. 357, 374 (1927).

Although First Amendment speech protections are far-reaching, there are limits. Speech integral to criminal conduct, such as fighting words, threats, and solicitations, remain categorically outside its protection. United States v. Williams, 553 U.S. 285, 297 (2008).

In the case of a criminal solicitation, the speech-asking another to commit a crime-is the punishable act. Solicitation is an inchoate crime; the crime is complete once the words are spoken with the requisite intent, and no further actions from either the solicitor or the solicitee are necessary.

So, whether or not the First Amendment protects White's right to post personal information about Juror A first turns on his intent in posting that information. If White's intent in posting Juror A's personal information was to request that one of his readers harm Juror A, then the crime of solicitation would be complete. No act needed to follow, and no harm needed to befall Juror A.

If, on the other hand, White's intent was to make a political point about sexual orientation or to facilitate opportunities for other people to make such views known to Juror A, then he would not be guilty of solicitation because he did not have the requisite intent required for the crime.

The existence of strongly corroborating circumstances evincing White's intent is a jury question. United States v. Hale, 448 F.3d 971, 983 (7th Cir. 2006).  Of course, the First Amendment may still have a role to play at trial.

The government has the burden to prove, beyond a reasonable doubt, that White intended, through his posting of Juror A's personal information, to request someone else to harm Juror A. After the prosecution presents 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. But, this is not a question to be decided now. We have no idea what evidence or testimony will be produced at trial.

The government has laid out the elements of the crime and the statute that White is accused of violating, along with some specific factual allegations for support, and that is all it is required to do. The question of White's intent and the inferences that can be drawn from the facts are for a jury to decide, as the indictment is adequate to charge the crime of solicitation. The indictment is legally sufficient and should not have been dismissed.

We REVERSE and REMAND for further Proceedings consistent with this opinion.

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

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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