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4th Circuit Revives Gay Hate Crime Prosecution

Posted on: August 22nd, 2017 by Art Leonard No Comments

The Richmond-based U.S. Court of Appeals for the 4th Circuit has revived a federal hate crime prosecution against a man who physically assaulted a gay co-worker without provocation at an Amazon Fulfillment Center in Chester, Virginia. U.S. District Judge John A. Gibney, Jr., had dismissed the case, accepting defendant James William Hill, III’s argument that prosecuting him would violate Congress’s constitutional authority to enact legislation under the Commerce Clause, because his conduct was not motivated by any desire to interfere with interstate commerce and was a purely private dispute.  United States v. Hill, 20176 U.S. App. LEXIS 15678, 2017 WL 3575241 (August 18, 2017).

According to the opinion for the appeals court by Judge Dennis W. Shedd, the indictment against Hill alleges that he “willfully caused bodily injury to C.T. because of C.T.’s actual and perceived sexual orientation” in violation of the Hate Crimes Prevention Act of 2009, and that this was sufficient to withstand a motion to dismiss the indictment. An opinion agreeing that the case can be prosecuted but dissenting from the “basis for the judgment” by the panel, was written by Judge James A. Wynne, and provides more factual details about the case.  Wynne charged the majority with failing to confront an important question about the application of the federal hate crimes law that was directly presented by this case.

C.T. was preparing packages for interstate shipment when Hill assaulted him around 7:00 p.m. on May 22, 2015. According to Wynne, “Defendant approached C.T. from behind and – without provocation or warning – repeatedly punched him in the face.  As a result of the attack, C.T. sustained numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and lacerations and bruising around his left eye.  Following the incident, neither Defendant nor C.T. returned to their work stations for the remainder of their ten-hour shifts.  Their absences affected more than 5,500 items, which were either not shipped or not ‘re-binned’ during that time.”  After the incident, Hill provided a statement to Amazon’s staff and subsequently to the Chesterfield County police.  Both times, he stated that he “felt disrespected by C.T. because C.T. was a homosexual; that he does not like homosexuals; and that C.T. deserved to be punched because he was a homosexual.”  “Hill offered no other explanation for the assault,” wrote Judge Wynne.

Because Virginia’s hate crimes law does not cover sexual orientation, the local prosecutor referred the case to the U.S. Attorney. Six months later, the Attorney General (at that time Eric Holder) certified that prosecuting Hill under the federal law “is in the public interest and is necessary to secure substantial justice.”  The case was presented to a federal grand jury, which returned an indictment alleging one count of a violation of the federal hate crime law.  The indictment states that Hill “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.”

These statements about commerce may seem strange, but they are necessary in order for the federal Hate Crimes Prevention Act to apply. Congress does not have broad power to enact criminal statutes.  Its power is limited by the categories listed in Article I of the Constitution, which do not include general power to pass criminal statutes.  Congress does have power to regulate interstate commerce, so it justified passing the federal hate crime law by providing that it applies to crimes that somehow affect interstate commerce.

In relation to this case, the crucial language is that the conduct “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or otherwise affects interstate or foreign commerce.” Judge Gibney concluded, mistakenly, that only an economic crime would fit this jurisdictional requirement.

Writing for the majority of the panel, Judge Shedd found that “the indictment specifically alleges that Hill’s conduct had an effect on interstate commerce,” and as such “is legally sufficient and does not present an unconstitutional exercise of Congressional power.”

Hill’s motion to dismiss the indictment was not a facial challenge to the constitutionality of the law, but rather an “as-applied” challenge, arguing, in effect, that Congress could not constitutionally turn an assault in a private business establishment involving co-workers into a federal offense. The factual question, wrote Shedd, is “whether Hill’s conduct sufficiently affects interstate commerce as to satisfy the constitutional limitations placed on Congress’s Commerce Clause power” and this “may well depend on a consideration of facts, and because the facts proffered here” in the indictment “may or may not be developed at trial, it is premature to determine the constitutional issues.”  Shedd noted prior cases holding that “an indictment that tracks the statutory language is ordinarily valid.”

Thus, it was inappropriate for District Judge Gibney to dismiss an as-applied challenge to the prosecution when the indictment, tracking statutory language, asserted that the assault had “interfered with commercial and other economic activity in which C.T. was engaged at the time of the conduct” and that the assault “otherwise affected interstate and foreign commerce.” This, according to Shedd’s opinion, was sufficient to meet the requirement that a federal indictment inform the defendant of the nature of the crime and allege facts sufficient to meet the statute’s jurisdictional requirement.

“Facts outside of an indictment should not be used to conclusively decide whether an element of a criminal offense is satisfied during a pretrial motion,” wrote Shedd, “and a Congressional statute should not be overturned on an incomplete record.”

This was too timid to satisfy Judge Wynne. “On review to this Court,” he wrote, “the majority opinion now ignores the district court’s basis for dismissing the indictment and instead concludes that, because the government’s indictment sets forth the charged offense in the language of the statute, it satisfies the specificity requirement imposed by Fifth and Sixth Amendments.”

To Wynne, the question posed is: “Whether Congress can enact a statute, pursuant to its authority to regulate interstate commerce, proscribing the physical assault of a victim whose job involves packing products for interstate sale and shipment and who is doing that job at the time of the assault?” Wynne argued that a proper answer to this question would lead to the conclusion that the statute “easily falls under Congress’s broad authority to regulate interstate commerce.”  He cited a recent Supreme Court decision, Taylor v. United States (2016), holding that “Congress has the authority to regulate criminal conduct that interferes with ongoing commercial activity.”

“Cavalierly, the majority ducks the only issue in this case and instead decides an issue that was neither presented by the parties nor addressed by the district court,” he charged. “The only issue in this case is one of first impression and of great importance – it was addressed by the district court and has now been placed squarely before us by the parties.  We should not, on our own volition, create a basis for avoiding it.”

Judge Wynne makes an important point. The 2009 enactment of this statute was the first successful legislative achievement of the Obama Administration’s LGBT rights agenda, and the focus of much agitation by LGBT political groups, but there was always a question whether it would have significant application in the real world beyond a symbolic declaration by Congress that committing a violent crime because of a victim’s sexual orientation was wrong, precisely because of the constitutional limitation on Congress’s authority.

The main practical purpose of the statute was to fill the gap left by the many states that have balked at including sexual orientation in their state hate crimes laws, as is the case with Virginia. Thus far, there have actually been few successful prosecutions under this law, despite the continuing epidemic of anti-gay violence in many parts of the country, because of the limitation that the statute applies only if the jurisdictional requirements are met, and only where local prosecutors are not empowered specifically to prosecute anti-gay hate crimes.  Successful prosecutions have involved crimes committed with cars traveling on interstate highways, or using weapons that had been sold across state lines, but, as Judge Wynne points out, this is the first case to present the question whether a physical assault of one worker against another in a private (that is, non-governmental) workplace is covered by the law.

And, as Judge Wynne pointed out, in a certain sense this case is a no-brainer. This workplace is an Amazon Fulfillment Center, selecting and packaging thousands of goods for shipment to on-line customers in many different states.  Any interruption in workplace activity would clearly affect the shipment of goods in interstate commerce, and an assault that at least temporarily disables the victim from performing his job will clearly interfere with commerce.  Wynne pointed to the cases in which the Supreme Court has found that even a slight interference with commercial activity can provide the basis for applying a federal regulation.  Missing several hours of a shift, delaying the dispatch of thousands of parcels, would clearly seem to qualify.

Hill argued that his assault was not motivated by any attempt to interfere with commerce, and thus did not come within the statute, but, wrote Wynne, “the Supreme Court has recognized that the economic or non-economic nature of proscribed conduct turns on whether the conduct can be shown to affect economic activity subject to congressional regulation – and therefore interstate commerce – and not whether the perpetrator of the conduct was motivated by economic interest. Indeed, we have consistently rejected the argument that a defendant must intend for his criminal conduct to affect interstate commerce for such conduct to be susceptible to congressional regulation under the Commerce Clause.”


For example, he wrote, “this Court and other circuits have concluded that federal arson statutes may be applied against defendants who set fire to property used in interstate commerce, notwithstanding that such defendants were motivated by purely personal reasons, and not any economic interest.” He insisted that “there is no constitutional or logical basis to conclude that the Commerce Clause authorized Congress to regulate interference with one factor of production (capital in the form of real property), but not another (labor).  On the contrary, the Supreme Court’s longstanding recognition that Congress may pervasively regulate the labor market and the terms and conditions of employment indicates that Congress may proscribe conduct that interferes with labor as well as capital.”


Thus, Wynne decisively rejected Judge Gibney’s holding that because Hill’s conduct was not an economic crime, it could not be constitutionally prosecuted in federal court, or that allowing the prosecution to go forward would violate Hill’s constitutional right to a presumption of innocence until proven guilty.


“The immediate impact of Defendant’s assault of C.T. on ongoing commercial activity demonstrates a sufficient relationship to interstate commerce to support Defendant’s prosecution under the Hate Crimes Act,” wrote Wynne, and because Hill had failed to make a plain showing to the contrary, the case should be allowed to go forward. Of course, in order to secure a conviction, the government will have to prove actual interference with commerce by presenting relevant evidence at trial.  Wynne rejected the argument that because the indictment did not specifically state how much interference had taken place, it was jurisdictionally defective, noting that so long as any interference could be shown, the jurisdictional requirement would be satisfied.

Ending his dissent, Wynne chided the majority for producing an opinion that “elides” the important issue of whether anti-gay violence in the workplace in the form of an assault with fists (rather than a weapon such as a pistol that has moved across state lines) can be prosecuted under the federal Hate Crimes law. The question remains unanswered, but at least Wynne’s dissenting opinion is published and can provide some persuasive support for a future prosecution.

Confusion over Jury Charge Causes Reversal in New York Hate Crime Conviction

Posted on: July 22nd, 2013 by Art Leonard No Comments
Jury confusion about how to deal with a defendant charged under New York’s hate crime statute has resulted in an appellate ruling setting aside the guilty verdict in hate crime homicide as “inconsistent” in People of New York v. Delee, 2013 WL 3766913 (Appellate Division, 4th Dep’t., July 19, 2013). 

Dwight R. Delee shot and killed a victim identified by the court as “a young man who dressed as a woman and was known to be homosexual” in Onondaga County while uttering anti-gay statements.  The indictment charged him with murder in the second degree as a hate crime, murder in the second degree, and criminal possession of a weapon.  Prosecutors in hate crime cases customarily charge in the alternative so that a jury can convict on the underlying murder charge even if they find that the prosecutor has failed to sustain the burden to prove beyond reasonable doubt that the victim was killed because of his sexual orientation. 

After trial, and without objection from the parties, the court decided to add to the charge to the jury some lesser-included manslaughter charges, with and without hate crime specifications, resulting in a rather cumbersome charge and verdict sheet that caused the jury to ask several questions, provoking “clarifications” from the trial judge (Onondaga County Court Judge William D. Walsh) that were not models of clarity.  Evidently, the jury concluded that the prosecutor had met the burden of proof on manslaughter in the first degree as a hate crime, but in filling out the verdict form, the jury, thinking that it was following the judge’s instructions, indicated “guilty” for manslaughter in the first degree as a hate crime but “not guilty” for manslaughter in the first degree. 

Defense counsel moved to vacate the verdict as inconsistent, arguing that a “not guilty” verdict on manslaughter meant that the jury believed the prosecutor had failed to sustain its burden of proof on at least one element of manslaughter, and thus the verdict of “guilty” of manslaughter as a hate crime could not stand.  The trial judge rejected the motion, but the point had been preserved for appeal, and the Appellate Division panel voted 4-1 to reverse the verdict, accepting the defendant’s argument. 

“To find defendant guilty of manslaughter in the first degree as a hate crime, however, the jury must have found that the People proved beyond a reasonable doubt all of the elements of manslaughter in the first degree, plus the added element that defendant selected the victim due to his sexual orientation.  It therefore follows that the verdict is inconsistent,”  wrote the court.

Dissenting, Justice Erin Peradotto argued that the non-hate-crime manslaughter charge should be seen as a lesser-included charge of the hate-crime manslaughter charge, so that the “not guilty” verdict would not be seen as inconsistent, but the majority was not buying this.  Peradotto went through the various charges and clarifications in detail, showing how the jury could have been misled into thinking that it could pick as between the two charges and find guilty as to one of them and not the other.  “In my view,” wrote Peradotto, “the jury’s verdict is reasonable and logical based upon the elements of the crimes as charged to the jury and, therefore, should not be disturbed.” 

After describing the notes that the jury sent to the judge seeking clarification of the charge, the judge wrote, “The above notes indicate that the jury was convinced, as amply supported by the record, that the fatal shooting of the victim constituted a hate crime, but that the jury was grappling with whether to convict defendant of the hate crime of murder in the second degree, manslaughter in the first degree, or manslaughter in the second degree.  After the jury determined that the defendant was guilty of manslaughter in the first degree as a hate crime, it proceeded to the second count of the indictment, as the court instructed it to do, and found defendant not guilty of ordinary murder in the second degree and the lesser included offenses thereof.”  In other words, the jury thought of the non-hate crime manslaughter charge as a lesser-included offense, and dealt with it accordingly. 

An affidavit from the foreperson, sworn a week after the verdict, confirms this interpretation, wrote the dissenter, who quoted from it: “We determined that [defendant]’s motive and actions did meet the criteria as defined by the judge for a hate crime.  We came to that decision relatively quickly.”  According to the foreperson, the jury then “discussed the other charges … that were not hate crimes, but did not find him guilty of those charges once we had determined that this was a hate crime.”  “In my view,” wrote Justice Peradotto, “that analysis makes perfect sense in light of the court’s instructions and the distinct, ‘particularly heinous nature of criminal acts that are committed against individuals because of prejudict’ (N.Y. Bill Jacket, 2000 AB 30002, ch 107, Mem of Atty Gen).”

“The jury determined that defendant shot the victim because of his sexual orientation and thus that defendant was guilty of manslaughter in the first degree as a hate crime.  Defendant did not simply shoot the victim for some other ‘non-hate’ reason or no reason at all, and thus the jury determined that defendant was not guilty of ‘ordinary’ manslaughter in the first degree.  In my view, this is in accord with ‘the fundamental principle that the jury should be permitted to render a verdict that fully reflects defendant’s culpability.’ Jurors are not legal experts and, given the instructions that were provided in this case, I cannot conclude that the jury’s verdict was inconsistent, illogical, or contradictory.”

This decision suggests that prosecutors and judges need to focus on figuring out how to articulate a comprehensible jury charge for hate crime cases where the prosecutor is also charging in the alternative, to avoid confusing jurors and allowing a hate-crime murdered to get off based on jury confusion about the court’s instructions.

Another peculiarity of the court’s decision is the imprecision with which the victim, who was not named in the decision, was described.  According to media reports, the victim was Lateisha Green, a transsexual woman, but the court (and dissent) characterize Lateisha as a homosexual man who dressed as a woman but was known in the community as a homosexual.  One wonders why the court is skirting the distinctions between sexual orientation and gender identity?  Is it lack of judicial understanding, or a concern to be able to frame this case consistently with New York’s hate crime statute?