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August 29, 1991


The opinion of the court was delivered by: BUA


 After a nine-day jury trial, defendant Kenneth Thomas Hayward was found guilty of having violated 18 U.S.C. § 241, 42 U.S.C. § 3631(b) and 18 U.S.C. § 844(h)(1). Defendant William Bradford Krause was found guilty of having violated those same provisions along with violating 18 U.S.C. § 1512(b)(1) and 18 U.S.C. § 924(c)(1). Defendants Hayward and Krause now bring a joint motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial. They have also filed a motion seeking to dismiss the indictment due to prosecutorial misconduct. Defendant Hayward further requests that the court reconsider its decision to detain him pending sentencing. For the reasons stated below, the court denies defendants' motions.


 Defendants raise a whole slew of grounds in support of their motion. Unfortunately, defendants do no more than proffer a perfunctory argument for each and then move on to the next. Nevertheless, the court has considered their arguments. The court finds that defendants' motion for acquittal or a new trial should be denied.

 I. Count Four -- 18 U.S.C. § 844(h)(1)

 Defendants base their argument on the legislative history behind the provision. In support, they cite United States v. Lee, 935 F.2d 952 (8th Cir. 1991) in which that court relied on legislative history for its finding that 18 U.S.C. § 844(h)(1) is not a proper charge for a cross-burning where there has been no damage to persons or property by the use of fire. Id. at 958.

 Defendants' suggested analysis, though, puts the cart before the horse. "Where . . . resolution of a question of federal law turns on a statute and the intention of Congress, we look first to the statutory language and then to the legislative history if the statutory language is unclear." Blum v. Stenson, 465 U.S. 886, 896, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The court finds it unnecessary to consult legislative history here since the language of the statute is clear. 18 U.S.C. § 844(h)(1) is unequivocal on its face that it prohibits persons from using fire to commit any felony which may be prosecuted in the courts of the United States. There are no limiting clauses in the statute to suggest that § 844(h)(1) only applies to arson-type offenses or circumstances involving the destruction of property. In fact, a reading of the entire statute would argue against such a limited interpretation. The very next provision in the statute, § 844(i), prohibits persons from using fire to maliciously damage or destroy property. If § 844(h)(1) were read in the manner suggested by defendants, the two provisions would be virtually the same.

 In United States v. Worthy, 915 F.2d 1514 (11th Cir. 1990), the Eleventh Circuit came to the same conclusion in interpreting the sentencing guideline section which formerly applied to § 844(h)(1). The court found that there was nothing in the language of that section (the former terms of the section and the current terms of the statutory provision are the same) to indicate that it was intended to apply only to arson offenses. "From [the] clear and unambiguous words [of the section] we can only conclude that the use of 'fire or an explosive to commit another offense that is a felony under federal law' . . . falls under the ambit [of the section]" "whether or not such use of fire constitutes legal arson." Id. at 1517; accord United States v. Long, 935 F.2d 1207, 1212 (11th Cir. 1991). For these reasons, defendants' argument fails.

 II. Count One -- Sufficiency of the Evidence

 Defendants next claim that the evidence linking the two cross-burning incidents was insufficient to support the Count One conspiracy conviction. The court disagrees. In a sufficiency of evidence challenge, the court must consider the evidence in the light most favorable to the government. United States v. Jeffers, 520 F.2d 1256, 1269 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 46 L. Ed. 2d 656, 96 S. Ct. 805 (1976). The evidence in this case shows that the two cross-burnings were part of one conspiracy. Both cross-burnings were directed at the same home. As the jury found, the aim of the two cross-burnings was to intimidate the residents of the home and to interfere with their right to associate with persons of another race. Defendant Krause was a participant in both the first and second cross-burnings. Although defendant Hayward did not act in the first cross-burning, evidence submitted at trial showed that he knew about the first cross-burning and was aware of its purpose. He later participated in the second cross-burning. The common purpose and cast of characters of the two cross-burnings place them in the same conspiracy.

 III. Motion to Suppress

 Defendants reiterate their argument that the .22 caliber semi-automatic pistol recovered from Susan Hayward, defendant Hayward's wife, should have been suppressed along with any statements she might have made. The court ruled in United States v. Hayward, No. 91-25, 1991 U.S. Dist. LEXIS 5539 (N.D. Ill. April 25, 1991) that ...

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