Harassment, Stalking, Misconduct This is a question about using Fair Housing Act violations and then applying Hate Crime modifiers

[Randy33]

Jurisdiction

Mississippi

I recently saw a case wherein a White man was in a dispute with his black neighbors. He made a wooden cross, and burned it in view of their house. The cross was built out of wood that he owned and it was constructed on his private property. He was charged with violating the Fair Housing Act and Hate Crime modifiers were added to the charges. He took a plea deal and was sentenced to 42 months in prison.

My question is this: Could be have won of he'd went to trial? Is it common to use Fair Housing Act in this way? What are the implications of this type of prosecution in regards to property and speech in the United States?

 

[justblue]

I recently saw a case wherein a White man was in a dispute with his black neighbors. He made a wooden cross, and burned it in view of their house. The cross was built out of wood that he owned and it was constructed on his private property. He was charged with violating the Fair Housing Act and Hate Crime modifiers were added to the charges. He took a plea deal and was sentenced to 42 months in prison.

My question is this: Could be have won of he'd went to trial? Is it common to use Fair Housing Act in this way? What are the implications of this type of prosecution in regards to property and speech in the United States?

Based on the insufficient information you posted...Who knows? Apparently, his attorney did not think that his klanner client could win so they advised to take the plea.

 

[flyingron]

The Fair Housing Act is frequently used to prosecute cross burning cases. All the government needs to do is show that there was intent to intimidate the occupant of the house (a court decision shows that just the act of the cross burning itself isn't sufficient to imply this).

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with—
section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings;

 

[Tax Counsel]

My question is this: Could be have won of he'd went to trial? Is it common to use Fair Housing Act in this way? What are the implications of this type of prosecution in regards to property and speech in the United States?

It's impossible for me to make a judgment about how likely he'd win if he went to trial because I don't have all the facts of the case. But the DOJ doesn't prosecute cases it doesn't think it can win, and over 90% of criminal cases are resolved by plea bargain. It is the relatively rare case that actually goes to trial. Bear in mind that he chosen to go to trial and was found guilty, the sentence imposed by the court would likely have been significantly higher than what the plea deal was. That's why defendants overwhelmingly choose plea deals. In most cases the chance of outright acquittal at trial are low and the risk of more severe sentence at trial is high enough that the plea is the more prudent choice.

Free speech rights in the United States are broader than pretty much any other nation on earth. But they are not absolute. There are some types of speech the government may constitutionally prohibit, but it's quite narrow. In a recent opinion from the U.S. Court of Appeals for the 8th Circuit describes what the government's high burden is in such cases:

To sustain the conviction in this case, therefore, the government must identify sufficient evidence for a jury to find that Sryniawski acted with intent to "harass" or "intimidate" in a sense that is not protected under the First Amendment. For example, "criminal harassment" is unprotected where it "constitutes true threats or speech that is integral to proscribable criminal conduct." Ackell, 907 F.3d at 76; see United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). "Intimidation in the constitutionally proscribable sense of the word is a type of true threat," where the speaker intends to place the victim "in fear of bodily harm or death." Virginia v. Black, 538 U.S. 343, 360, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). The government does not maintain that Sryniawski's e-mails contained a true threat against Parris or his family, but suggests three categories of harassing speech that are unprotected: speech integral to criminal conduct, defamatory speech, and obscenity.​

United States v. Sryniawski, 48 F.4th 583, 587-8 (8th Cir. 2022).

I'm not sure what you are looking for with respect to property. You'll need to be more specific. Where was this burning cross placed?

 

[army judge]

Mississippi man sentenced to 42 months in prison for cross burning - 1010 WCSI

https://www.usnews.com/news/us/arti...man-gets-42-years-in-prison-for-cross-burning
......

 

[flyingron]

While the person can make whatever "deal" he want with the US Attorney, the judge is not bound by what the prosecutor agrees to. More often than not, they do, but it's not required.