The opinion of the court was delivered by: Lynn Adelman District Judge
In 2003, a jury in the Northern District of Illinois convicted white supremacist leader Matthew Hale of soliciting the murder of District Judge Joan Lefkow, who had presided over a civil case involving Hale's organization, the World Church of the Creator. The district court sentenced Hale to 480 months in prison, and the Seventh Circuit affirmed Hale's conviction and sentence on direct appeal. See United States v. Hale, 448 F.3d 971 (7th Cir. 2006).
In 2008, Hale filed a motion challenging his conviction and sentence on various grounds, including the alleged ineffectiveness of his trial counsel. Among other errors, Hale alleged that his lawyer botched jury selection, failing to challenge or strike a juror named Mark Hoffman, a gay man with an African-American partner who ended up serving as the jury foreperson. On September 11, 2008, after an article about Hale's motion appeared in the Chicago Sun-Times, defendant William White (hereafter "defendant"), also a white supremacist and the leader of an organization called the American National Socialist Workers Party ("ANSWP"), posted an article about Hale's motion on his website, Overthrow.com. The article was entitled "Hale Seeks To Have Sentence Overturned," with the sub-headline "Gay Jewish Anti-Racist Led Jury." (Govt. Ex. 2 at 1.) Below the headline, defendant posted Hoffman's picture with the caption:
Gay Jewish anti-racist Mark P Hoffmann was a juror who played a key role in convicting Hale. Born August 24, 1964, he lives at 6915 HAMILTON #A CHICAGO, IL 60645 with his gay black lover and his cat "homeboy". His phone number is (773)274-1215, cell phone is (773)426-5676 and his office is (847) 491-3783. (Govt. Ex. 2 at 1.) Defendant also displayed Hoffman's picture and the above caption on the blog section of the website. (Govt. Ex. 1.) The following day, after Hoffman's employer removed the picture to which defendant had linked, defendant posted a "Mark P Hoffman Update," with the sub-heading, "Since They Blocked the First Photo." (Govt. Ex. 4 at 1.) The post contained the same photo and caption, with the additional text: "Note that Northwestern University blocked much of Mr. Hoffman's information after we linked to his photograph." (Govt. Ex. 4 at 1.)
Based on these posts, the government charged defendant with soliciting or otherwise endeavoring to persuade another person to injure Hoffman based on his jury service in the Hale case, in violation of 18 U.S.C. § 373. Section 373(a) provides:
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than .
I dismissed the indictment on the ground that it failed to allege a solicitation and as contrary to the First Amendment, but the Seventh Circuit reversed, finding that I acted prematurely, and remanded the case for a trial at which the context of the posts could be considered. United States v. White, 610 F.3d 956 (7th Cir. 2010). The Seventh Circuit acknowledged that the case presented important First Amendment issues and stated that after the government produced its evidence, "the court may decide that a reasonable juror could not conclude that White's intent was for harm to befall [Hoffman], and not merely electronic or verbal harassment." Id. at 962.
I granted the government's motion to try the case to an anonymous jury, which returned a verdict of guilty. Before me now is defendant's motion for acquittal under Fed. R. Crim. P. 29. For the reasons that follow, and based on the entire trial record, I find that the government failed to present sufficient evidence to enable a reasonable juror to conclude either that defendant's posts regarding Hoffman constituted a solicitation to harm Hoffman, or that defendant intended the posts to solicit harm to Hoffman. I further find the posts protected by the First Amendment. Accordingly, I grant defendant's motion.
The government originally indicted defendant in October 2008, alleging that through the posts quoted above he solicited another person to harm "Juror A," the Hale jury foreperson. As circumstances "strongly corroborative" of defendant's intent that another person harm Juror A the indictment alleged that when he posted these statements defendant was aware that white supremacists, Overthrow.com's target audience, sometimes committed acts of violence against non-whites, Jews, homosexuals, and others perceived as acting contrary to the interests of the white race. The indictment further alleged that before posting the statements, defendant displayed on Overthrow.com other posts, some of which were still available, containing the home addresses of individuals he criticized on the website, and that in some of these posts defendant expressed a desire that these individuals be harmed. The indictment then listed various examples of such posts.
On February 10, 2009, the government obtained a superseding indictment, which tracked the original indictment but also referred to additional posts allegedly corroborative of defendant's intent that Juror A be harmed, including posts regarding the 2005 murders of Judge Lefkow's husband and mother and an e-mail listing the home address of various federal prosecutors, agents, and others involved in the Hale matter that had been circulating among white nationalist discussion groups.
After the government filed the superseding indictment, defendant moved to transfer the case to a federal court in Virginia (where the government had charged him, in a separate matter, with interstate transmission of threatening communications); to recuse the judges in the Northern District of Illinois based on the references to the Lefkow murders; and to disqualify the United States Attorney's Office in the Northern District of Illinois. The court granted the motion to recuse, and the case was re-assigned to me. I denied defendant's motions to transfer and to disqualify the prosecutors, and authorized defendant to file additional motions relating to the superseding indictment. Defendant subsequently filed motions to exclude certain evidence under Fed. R. Evid. 403 and 404(b), to strike surplusage from the indictment, and to dismiss the indictment on various grounds, including the First Amendment. For its part, the government moved to empanel an anonymous jury at trial.
As indicated above, I granted defendant's motion to dismiss the superseding indictment, holding that defendant's speech, as alleged in the indictment, was protected by the First Amendment and did not state a violation of § 373. United States v. White, 638 F. Supp. 2d 935 (N.D. Ill. 2009). I noted that defendant's posts regarding Juror A did not expressly solicit or seek to persuade another person to harm Juror A; rather, they disclosed personal information and commented on his sexual orientation and attitude toward race. I further noted that while the posts could reasonably be read as criticizing Juror A's vote to convict Hale, the Supreme Court has long held that scrutiny and criticism of people involved in criminal cases, which may include the disclosure of personal information about them, is protected by the First Amendment. Id. at 944-45 (citing The Florida Star v. B.J.F., 491 U.S. 524 (1989); Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982); Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979); Wood v. Georgia, 370 U.S. 375 (1962)). Finally, I concluded that the other circumstances listed in the indictment, including defendant's other posts and his awareness that white supremacists (the website's target audience) sometimes committed acts of violence against alleged enemies of the white race, could not transform defendant's lawful statements about Juror A into a criminal solicitation. I rejected the government's suggestion that simply because defendant had previously disclosed personal information about individuals and expressed a wish that they be harmed, his lawful statements about Juror A could be found to be a violation of § 373. Id. at 945-46.
In reversing, the Seventh Circuit found the indictment legally sufficient under Fed. R. Crim. P. 7, as it tracked the language of the charging statute, listed each element of the crime, provided corroborating circumstances of defendant's intent, and made defendant aware of the specific conduct against which he had to defend himself at trial. Id. at 959. The court then turned to the constitutional question, stating that any "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." Id. The court noted that in the case of a criminal solicitation, the speech -- asking another to commit a crime -- is the punishable act. The court explained that 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 solicitee are necessary. Nor, the court noted, is a specific person-to-person request required. Id. at 960. The court further noted that a request for criminal action can be coded or implicit. Id. at 961.
The court concluded that:
White's argument boils down to this: his posting was not a solicitation and because it is not a solicitation, it is speech deserving of First Amendment protection. The government sees the posting in the opposite light: the posting and website constitute a solicitation and as such, fall outside the parameters of First Amendment protection. This dispute turns out not to be an argument about the validity of the indictment in light of the First Amendment, but is instead a dispute over the meaning and inferences that can be drawn from the facts. The government informed us at oral argument that it has further evidence of the website's readership, audience, and the relationship between White and his followers which will show the posting was a specific request to White's followers, who understood that request and were capable and willing to act on it. This evidence is not laid out in the indictment and does not need to be. The existence of strongly corroborating circumstances evincing White's intent is a jury question. Of course, the First Amendment may still have a role to play at trial. Based on the full factual record, the court may decide to instruct the jury on the distinction between solicitation and advocacy, and the legal requirements imposed by the First Amendment. See, e.g., United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985).
Id. at 962 (internal citations omitted).
The government's first witness was FBI Agent Sara Lopez, who provided background on the Hale case. Lopez testified that in July 1999, while assigned to a domestic terrorism unit which investigated white supremacists, she acted as the case agent in the investigation of a series of shootings committed by a member of Hale's organization, Ben Smith, in which Smith wounded nine people and killed two. All of Smith's victims were Jewish, African-American, or Asian. (Trial Tr. at 44-48.) Lopez testified that Smith belonged to the World Church of the Creator, which Hale ran out of his father's residence in East Peoria, Illinois. (Tr. at 49.)
Following Smith's death in a shoot-out with law enforcement, Lopez investigated Hale's group, learning that Hale obtained a law degree but had been denied a law license by the State of Illinois on June 30, 1999, days before Smith commenced his shooting spree. (Tr. at 50-51.) Lopez testified that through her experience investigating white supremacist groups she learned of the concept of "lone wolf activism," pursuant to a person is motivated to individually commit criminal acts based on something he has heard or seen. (Tr. at 52.) Lopez developed no evidence that Hale or other members of his group participated directly in the Smith shootings. (Tr. at 55.) Agents continued their investigation, however, developing a confidential informant, Tony Evola, to keep tabs on Hale. Evola, who acted as Hale's head of security, accompanying him to meetings in and out of Illinois, agreed to provide information, at times wearing a wire and recording conversations. (Tr. at 55-56.)
In May 2000, a group called the TE-TA-MA Foundation, which also called itself the Church of the Creator, filed a civil suit in the Northern District of Illinois against Hale and his organization, requesting that Hale cease using the "Church of the Creator" name. (Tr. at 57.) In June 2002, Judge Lefkow ruled in favor of Hale, but in August 2002 the Seventh Circuit reversed and directed Judge Lefkow to rule in favor of TE-TA-MA. (Tr. at 58-59.) On November 19, 2002, Judge Lefkow entered judgment against Hale. Hale refused to comply with the order, and Judge Lefkow issued an order finding him in contempt, setting a hearing for January 8, 2003. Between November 19, 2002, and January 8, 2003, Hale solicited Evola to commit a violent act against Judge Lefkow. Specifically, on December 4, Hale e-mailed Evola, asking Evola to locate Judge Lefkow's home address, and on December 5, Evola and Hale discussed "exterminat[ing] the rat," code for killing Judge Lefkow. (Tr. at 50-60, 74.) As a result of those conversations, on January 7, 2003, Hale was indicted for soliciting the murder of Judge Lefkow. (Tr. at 60-61, 74.)
Hale went to trial on April 7, 2004. One of the jurors selected was Mark Hoffman, who ended up being the foreperson. On April 26, 2004, the jury convicted Hale. (Tr. at 62.) The day Hale was convicted, defendant posted what purported to be Tony Evola's address and phone number on Overthrow.com. (Tr. at 63.) However, the address turned out to be for a different person, Antonio Evola. (Tr. at 64, 76.) No charges were filed against defendant related to that posting. (Tr. at 76-77.) Nor did the investigation reveal that defendant was involved with Hale between 2002 and 2005, or that he had anything to do with Ben Smith. (Tr. at 78-79.)
On February 28, 2005, Judge Lefkow's husband and mother were killed. (Tr. at 67.) Lopez, again acting as the case agent, investigated whether someone involved in Hale's group was responsible, but the investigation revealed that the murders were committed by a man named Bart Ross, a disgruntled litigant, and had nothing to do with Hale. (Tr. at 68, 70, 77.) Hale was sentenced in April 2005. (Tr. at 67.)
On September 11, 2008, Lopez received a call from Hoffman, after which she viewed defendant's website, Overthrow.com, where she saw the post relating to Hoffman. (Tr. at 70-72.) Lopez testified that Hoffman's identity as one of the Hale jurors was public knowledge. (Tr. at 79-80.)
The government next called FBI Special Agent Paul Messing, a member of the Richmond, Virginia Computer Analysis Response Team ("CART"), which performed computer forensic analysis on digital media seized by the FBI. (Tr. at 80-81.) Messing testified that in October 2008 he assisted in two searches of properties associated with defendant in Roanoke, Virginia, pursuant to which agents seized a variety of items, including the server/computer used to run Overthrow.com. (Tr. at 85-88.) Messing further determined that the Hoffman post was created on a computer seized from defendant's home. (Tr. at 97.) The government also presented a stipulation that, if called to testify, FBI Agent David Church would testify that on October 27, 2008, he spoke to defendant, and defendant indicated that he runs Overthrow.com and made the postings related to Mark Hoffman. (Tr. at 102-03.) Messing testified that prior to sending a copy of the seized materials to agents in Chicago he installed software called Forensic Tool Kit ("FTK"), which would enable them to search for specific articles and words on Overthrow.com. (Tr. at 99-100).
The government then called John Dziedzic, an officer with the Cook County Sheriff's Department and member of the Chicago Regional Computer Forensics Laboratory ("RCFL"). (Tr. at 103-04.) Dziedzic testified that he verified the existence of various posts/articles, marked as government exhibits 1-35 at trial, on the server processed by Special Agent Messing. (Tr. at 106-07.) He further testified that, if the server were plugged into the internet, all of those articles would be available to an internet user who visited Overthrow.com. (Tr. at 107-08.)
The government next called Hoffman, who testified that he moved to Chicago with his life partner in 1999, taking a job at Northwestern University. (Tr. at 117-19.) Hoffman indicated that after the Ben Smith shootings Hale wanted to come to the Northwestern campus to speak, leading to student protests, one of which he attended in his capacity as an Associate Dean of Students. The University ultimately decided not to allow Hale to speak. (Tr. at 120-21.)
Hoffman testified that in April 2004 he was summoned for jury duty and ended up serving on the Hale trial. (Tr. at 121-22.) During voir dire, Hoffman disclosed his knowledge of Hale but indicated that he could be objective. (Tr. at 122-23.) He also disclosed his relationship with an African-American man. (Tr. at 124.) Nevertheless, he was selected as a juror. (Tr. at 125.)
The next day, an article appeared in the newspaper identifying one of the Hale jurors as an Assistant Dean at Northwestern, which caused Hoffman to worry about his safety; he removed the sign from his door and the message on his voice-mail saying he was "out for jury duty." (Tr. at 126.) At the conclusion of the trial, which lasted about a week and a half, the jurors retired to deliberate and selected Hoffman as the foreperson. (Tr. at 127-28.) Hoffman testified that after they returned a guilty verdict, the jurors were escorted out of the building by the United States Marshal Service through a tunnel, popping up a block and a half away, so they did not have to go out the front entrance because of the press. (Tr. at 129-30.) Hoffman testified that on September 11, 2008, at about 9:30 a.m. he received a call on his cell phone from a Virginia number. (Tr. at 134, 171.) The male caller asked if he was Mark Hoffman; Hoffman said yes. The man asked if his date of birth was August 24, 1964, and Hoffman asked who was calling. The man then asked if his address was 6915 North Hamilton,*fn1 and Hoffman asked what this was regarding. The man then asked if he was on the jury that convicted Matthew Hale. Hoffman either said he didn't remember or didn't know. The man said, "that's all I need to know" and hung up. (Tr. at 134, 171-73.) The caller did not threaten Hoffman. (Tr. at 173.)
Hoffman testified that he immediately contacted Northwestern security and Agent Lopez. About 1/2 hour later, he began receiving text messages on his cell phone, saying things like "sodomize Obama, Bomb China, kill McCain, cremated Jews, all these really upsetting things." (Tr. at 135.) Hoffman indicated that he kept receiving text messages and broke down crying because he thought someone was coming after him. (Tr. at 135.) However, he admitted that none of the texts threatened his life; none said "I'm coming to get you"; and none were even directed towards him. (Tr. at 174-75.)
After speaking to his partner, who calmed him down, Hoffman, who had become a part-time law student after the Hale trial, went to his law school library to study. At about 2:00 or 3:00 p.m., he received an e-mail from a friend stating that he could do a "reverse lookup in Google." He typed in his cell number and "all of a sudden what popped up was a picture of me on overthrow.com, a white supremacist website." (Tr. at 136.) The text messages continued for a few days. (Tr. at 140.) Again, though, Hoffman testified that none of the texts he saw threatened him; nor were any threats later brought to his attention. (Tr. at 175.)
The government then introduced the three Overthrow.com posts pertaining to Hoffman. The first appeared as part of the article defendant wrote discussing Hale's post-conviction motion challenging his conviction based on Hoffman's service on the jury. The article was entitled "Hale Seeks To Have Sentence Overturned. Gay Jewish Anti-Racist Led Jury." (Govt. Ex. 2 at 1.) Below the headline and byline (9/11/2008 10:52 AM, Overthrow Staff), was a picture of Hoffman, with the caption:
Gay Jewish anti-racist Mark P Hoffmann was a juror who played a key role in convicting Hale. Born August 24, 1964, he lives at 6915 HAMILTON #A CHICAGO, IL 60645 with his gay black lover and his cat "homeboy". His phone number is (773)274-1215, cell phone is (773)426-5676 and his office is (847) 491-3783. (Govt. Ex. 2 at 1; Tr. at 142.)*fn2 The article then proceeded to discuss Hale's motion, stating:
A white leader wrongfully imprisoned on charges of "conspiring" to kill a federal judge may have his forty year prison sentence reduced if an Illinois judge assigned the task of reviewing the qualifications of his jurors finds impropriety in their selection.
According to a motion put forward by Matt Hale yesterday in federal court, a gay Jewish Assistant Dean at Northwestern University, Mark P Hoffmann, who has a gay black lover and ties to professional anti-racist groups, and who also personally knew a Northwestern University basketball coach killed by Ben Smith, a follower of Hale, was allowed to sit on his jury without challenge and played a leading role in inciting both the conviction and the harsh sentence that followed. Hoffman, who was elected jury Foreman and who led the conviction of Hale, lives in West Rogers Park with his gay black lover and his cat, "Homeboy".
The motion also asserts that Hale's counsel at trial, Thomas Anthony Durkin, failed to put on evidence that Hale had praised Judge Joan Lefkow, referred to her as an "ally" of the cause, and had referred to Jewish attorney James Amend as a "Jew rat" he would like to "exterminate", not Lefkow.
Hale also states that his attorney failed to challenge a government search warrant, stipulated to the accuracy of an inaccurate transcript, and put on evidence designed to convict Hale.
It has long been believed among white organizations that Durkin was bribed by Jewish groups or the federal government into deliberately sabotaging Hale's case.
Hale was accused of conspiring with a federal informant, Tony Evola, to murder Judge Lefkow, who had been hearing a copyright infringement case against Hale. However, during the trial, it came out that Hale did not conspire with Evola, but when Evola, at the instruction of the FBI, had tried to solicit the assassination of Lefkow, Hale had responded by saying that he didn't care what Evola did one way or another.
Hale has appealed and sought a reduction of his criminally long sentence since the trial, without avail, but his latest appeal may overturn the court's decision.
the Hale trial; Hale also mentioned those facts in his post-conviction motion. (Tr. at 166-67.) Hoffman also disclosed the race of his partner during the trial. (Tr. at 167.) Hoffman could not recall whether his home phone number was listed in the white pages (or listed under his name or his partner's) (Tr. at 165), but he did testify that the press called him on his home phone after the Hale trial, indicating that the number was publicly available (Tr. at 168).
A cryptic article in the Chicago Sun-Times refused to identify which court Hale had filed his appeal in or any details of the case, but documents filed in Illinois District Court Civil 1:08-cv-00094 by his attorney, Clifford J. Barnard, document Hale's claims. (Govt. Ex. 2 at 1-2.)*fn3 The article ended with the notation:
Overthrow.com ATTN: Bill White, Editor (Govt. Ex. 2 at 2.)
Hoffman testified that the first phone number listed in the caption about him (the 274 number) was his phone number when he lived at the Hamilton address, but he had moved from there about a year before. (Tr. at 143.) The cell number listed was his actual cell phone number, as was the office number listed. Regarding the balance of the caption, Hoffman indicated that he was not Jewish, and that his name was not spelled with a double "n." (Tr. at 143-44.)
On the left hand side of the Hoffman post were links to other articles referred to as "Top Articles (2008)", the first of which was entitled "Nigger Candidate Comes Out Against The Constitution." (Govt. Ex. 2 at 1; Tr. at 146.) Article number 11 on the list was entitled "Kill Richard Warman." (Govt. Ex. 2 at 2; Tr. at 146-47, 320.) Also to the left of the Hoffman post was a depiction of the cover of "National Socialist" magazine, which bore a picture of then-presidential candidate Barack Obama with crosshairs over his head and bearing the title: "Kill This Nigger? Negro Deification And the 'Obama Assassination' Myth." (Govt. Ex. 2 at 1; Tr. at 147.) Hoffman testified that if you clicked on the Obama picture you were taken "further back into the website to additional materials," including a portion of the "official Blog of Overthrow.com." (Tr. at 148; Govt. Ex 1.) That portion of the site also contained a post entitled, "The Juror Who Convicted Matt Hale." Below the same picture of Hoffman, the post included the same information:
Gay Jewish anti-racist Mark P Hoffmann was a juror who played a key role in convicting Hale. Born August 24, 1964, he lives at 6915 HAMILTON #A CHICAGO, IL 60645 with his gay black lover and his cat "homeboy". His phone number is (773) 274-1215, cell phone is (773) 426-5676 and his office is (847) 491-3783. (Govt. Ex. 1 at 1; Tr. at 148.) Following a post about defendant's appearance on a Columbia, South Carolina radio show (Govt. Ex. 1 at 1-2), the blog section contained a post entitled, "'Kill This Nigger -- Obama Assassination Magazine," followed by another photo of the magazine's cover and a statement that the American National Socialist Workers Party was seeking donors to help them raise money to print 20,000 copies of the new magazine: for distribution in certain "swing markets" just prior to the November election.
The controversial cover for a story on "Negro Deification And The 'Obama Assassination' Myth", looks at the role of Barack Obama's radical communist politics and Jewish backers have played in making his electoral career and how he plans genocide against white working people.
The article also looks into the phony "Obama assassination" conspiracies that have circulated in the Jewish press, and how major Jewish newspapers, like the Washington Post, tried to promote white supremacist opposition to Obama through planted and staged newspaper articles.
The ANSWP will print 10,000 copies of a 12-page magazine if it receives $3800 by October 1st, and will print 20,000 copies of a 16-page magazine if it receives $10,000 by that time. (20,000 copies of a 12-page magazine will run about $7,000 - $7,500).
Those willing to contribute to this project should send donations to: ANSWP PO Box 8601 Roanoke, VA 24014 As little as ten donors putting up $380 each, or twenty donors contributing $190, will make this project happen. (Govt. Ex. 1 at 2-4.)
This section of the blog contained various other stories, followed by links to "White Blogs." (Govt. Ex. 1 at 4-11; Tr. at 149.) At the end was a "Recent Comments" section, which included two comments about the Hoffman post, one stating "This is why I advocate every white racist/realist/nationalist register to vote so . . ." and the other stating: "Wanna take bets on how quick his cell phone turns off/number changes? My bet is by at least 5pm." (Govt. Ex. 1 at 11; Tr. at 150.) Hoffman testified that he initially refused to change his number but decided to do so about a week later after he got a disturbing phone call.*fn4 (Tr. at 150, 154.)
Hoffman testified that after he saw these posts he had Northwestern remove all of his identifying information from its website. (Tr. at 150.) The school's IT people replaced Hoffman's photo with a picture of a swastika in a red circle with a slash through it, which then appeared on the Overthrow.com web page. (Tr. at 152.) However, the next day, September 12, 2008, at about 6:21 p.m., a new post appeared on Overthrow.com, entitled: "Mark P Hoffman Update," with the sub-heading, "Since They Blocked the First Photo." (Govt. Ex. 4 at 1.) The post contained the same photo of Hoffman, with the text:
Gay Jewish anti-racist Mark P Hoffman was a juror who played a key role in convicting Hale. Born August 24, 1964, he lives at 6915 HAMILTON #A CHICAGO, IL 60645 with his gay black lover and his cat "homeboy". His phone number is (773) 274-1215, cell phone is (773) 426-5676 and his office is (847) 491-3783.
Note that Northwestern University blocked much of Mr. Hoffman's information after we linked to his photograph. (Govt. Ex. 4 at 1; Tr. at 152-53.) On the left hand side, the site again contained links to the top articles of 2008 and a picture of the Obama magazine cover. (Govt. Ex. 4 at 1; Tr. at 153.)
The government obtained a copy of the magazine, which also contained an article about Hoffman, entitled "Hale's Jew-ror." (Govt. Ex. 5 at 4-6; Tr. at 156-58.)*fn5 The article began:
Mark P Hoffman is typical of the trash you might see carrying signs and throwing urine bags at a local rally against "racism," "sexism," or "homophobia". A former professor at Chicago's Northwestern University who lives at 6915 Hamilton #A in Chicago, Illinois, 60645, he's a homosexual Jew with a black lover and a cat named "homeboy." You can call him at (773) 274-1215, cell phone is (773) 426-5676 and his office is (847) 491-3783.
If that was all that Hoffman was -- another anonymous voice in a dirty Jewish mob, screaming for blood and for the further impoverishment of the white worker -- he would hardly be of note. But Hoffman is something more -- he was not only a juror at the nationally publicized trial of Matt Hale, but the jury foreman, and the architect of both Hale's conviction and his extreme and lengthy forty year sentence. (Govt. Ex. 5 at 6.) The article then discussed suspicions that Hale's lawyer threw the case and may have been bribed, other issues at Hale's trial, and Hale's recent court filing challenging Hoffman's service on the jury. (Id.)
Nowhere in any of the Overthrow.com posts or the magazine article did defendant call for anyone to kill or hurt Hoffman, his life partner, or his cat. (Govt. Ex. 1, 2 & 4; Tr. at 181, 183, 185-86, 190.) Hoffman testified that from September 11, 2008, the date of the first post, to the date of defendant's trial, no one threatened to kill him, showed up at his house, stalked him, or physically harmed him in any way. (Tr. at 190-91.)
The government next called FBI Special Agent Maureen Mazzola, who acted as the case agent in defendant's prosecution. (Tr. at 196-97.) Mazzola testified that as part of her investigation she obtained phone records for Mark Hoffman's cell phone and the cell phone of Megan White, defendant's wife, which reflected a call from Megan White's phone to Hoffman's on September 11, 2008, at 10:34. (Tr. at 201-02.) Mazzola further testified that as part of her investigation she reviewed the Overthrow.com website in great detail. (Tr. at 202.) The government then introduced through Mazzola various older posts, marked as exhibits 1-35,*fn6 from the Overthrow.com server. (Tr. at 202-03.) In these posts, defendant displayed what purported to be the addresses of the "Jena Six," a group of black teens accused of beating a white boy (Govt. Ex. 8, 10), along with an article entitled "Lynch The Jena Six" (Govt. Ex. 35); discussed an attack on Holocaust survivor and author Elie Wiesel by a white supremacist named Eric Hunt and displayed addresses for Wiesel "in case anyone was looking for him" (Govt. Ex. 9); excoriated Canadian civil rights lawyer Richard Warman, posting what purported to be Warman's address and stating that Warman "should be drug out into the street and shot, after appropriate trial by a revolutionary tribunal of Canada's white activists" (Govt. Ex. 11, 18, 19); discussed the murders of Judge Lefkow's husband and mother, which defendant considered "justice" (Govt. Ex. 13-15); mentioned an e-mail allegedly containing the home addresses of other persons involved in the Hale case circulating among white nationalist discussion groups, but which defendant declined to republish because "we feel there is so great a potential for action . . . at this time" (Govt. Ex. 16); discussed an attack on the former home of an individual who allegedly cooperated with federal authorities against a white supremacist named Jake Laskey (Govt. Ex. 23); displayed the home address and phone number of newspaper columnist Leonard Pitts after Pitts wrote a column defendant did not like (Govt. Ex. 30), and which he refused to remove upon the request of Pitt's editor, stating "if some loony took the info and killed him, I wouldn't shed a tear" (Govt. Ex. 31).
Mazzola, who viewed Overthrow.com when it was "live" on the internet, testified that a user who visited the website on September 11, 2008 would first see the Hoffman post, exhibit 2. (Tr. at 287, 296.) However, such a user would not immediately see the other articles introduced by the government; he would have to click on a link or otherwise visit another portion of the site to reach those articles. (Tr. at 287-88, 290, 295, 301, 303.) To find a particular article, the user would have "to be either looking for it or reading every single article on the website." (Tr. at 292.) And if one clicked on a link to another article, Hoffman's information would disappear and no longer be on the same page.*fn7 (Tr. at 297, 299, 312.) Mazzola testified that she went through a "fair number" of the articles on the site prior to trial and picked the ones that would be presented to the jury. (Tr. at 292-93.) She stated that it was not difficult for her to find what she was looking for on the site. (Tr. at 321.) However, in locating specific posts Mazzola had the assistance of the FTK program installed by Messing; someone visiting the website would not have such a tool. (Tr. at 326.) Nowhere on the Overthrow.com website or blog did Mazzola see any statement suggesting that Hoffman be harmed. (Tr. at 317.) Nor did the National Socialist magazine article suggest that Hoffman be harmed. (Tr. at 318.)
The government next called two former members of the ANSWP. Philip Anderson, a twenty-two year old resident of Peoria Heights, Illinois, testified that he left the ANSWP after defendant's arrest, about two years before trial. (Tr. at 327.) He stated that he presently worked at McDonald's and lived with his parents. (Tr. at 328.)
Anderson testified that he was eighteen when he joined defendant's organization, which he discovered through the internet, specifically the website Overthrow.com. (Tr. at 328.) In June 2007, he obtained an application for membership either from the website or the back of the ANSWP magazine, filled it out, and sent it in. (Tr. at 329, 337; Govt. Ex. 55.) A few weeks later, defendant called him and left a voice mail stating that he wanted to talk to Anderson about activism and joining. (Tr. at 330-31.) Anderson attempted to return the call but didn't get through. He then received an e-mail from defendant or one of the other members advising him of a conference call. (Tr. at 332.) Anderson phoned in to join the conference call, which included other members, Mike Downs from Virginia, Mike Burks from Kentucky, and a woman from Texas. (Tr. at 333-34.)
Shortly thereafter, in the summer of 2007, defendant appointed the eighteen-year-old Anderson Illinois State leader. (Tr. at 332, 337.) Anderson testified that his responsibilities as state leader included distributing fliers and recruiting others. (Tr. at 339.) However, Anderson said that he was able to enroll just one other ANSWP member in the State of Illinois, a high school friend who also lived in Peoria Heights and with whom Anderson listened to white supremacist music. (Tr. at 333.)
Anderson testified that he personally met with defendant twice, the first time at the ANSWP Congress in Kentucky in the summer of 2007, and the second at a Hitler celebration in Chicago in April 2008. (Tr. at 334-35.) He also participated in regular, bi-weekly conference calls conducted by defendant. (Tr. at 336-37, 370.) During these calls, defendant discussed the status of the organization, finances and how the magazine was doing, and each unit leader would then provide a report on the activities in his area. (Tr. at 337, 370-71.) Defendant would also ask the participants to do certain things. However, at no time during such calls did defendant advocate violence. (Tr. at 340, 371.) Anderson testified that defendant never asked him to raise money or sell magazines; he did ask Anderson to recruit others, but, as noted, Anderson was able to recruit just one other person, his high school friend. (Tr. at 340.) Anderson testified that he also attended rallies including one at St. Xavier College at which Elie Wiesel spoke. (Tr. at 340.)
Anderson testified that he saw the Hoffman post on Overthrow.com in September 2008. (Tr. at 341.) He also saw the "Hale's Jew-ror" magazine article. (Tr. at 343.) Anderson testified that shortly after these posts appeared, defendant called him and explained that the FBI had searched his home and that he believed it may have something to do with the posts about the Hale juror. (Tr. at 343-44.) Defendant asked Anderson if he had heard anything about anyone wanting to do something or if someone had already done something to the Hale juror. Anderson said he hadn't. Defendant asked Anderson to call around to others involved in the white supremacist movement, including Tom McLaughlin, Steve Johnson, and Art Jones, to find out if they had heard anything. (Tr. at 344, 347.) Anderson testified that defendant sounded shaken up and worried that someone would do something to the juror. (Tr. at 344-46.)
Anderson called Johnson, who indicated that he had not seen the post about Hoffman. (Tr. at 347, 366.) Anderson testified that he made these calls because defendant asked him to and because he was concerned about harm being done to the juror. (Tr. at 353.) Anderson reported back to defendant during a conference call a few days later. During that call, defendant described to the other participants what he had earlier told Anderson -- the FBI raided his house regarding the Hale juror. (Tr. at 354.) Defendant said "someone may be trying to do something." (Tr. at 354.) Anderson told defendant he had gotten ahold of Art and Steve and neither of them knew anything about it, but they would listen to see if they heard anything. (Tr. at 355.) Defendant said "okay." (Tr. at 356.) Defendant did not at that time sound anxious and concerned, as he had in the previous one-on-one call with Anderson. (Tr. at 356.) Shortly thereafter, Anderson learned that defendant had been arrested. (Tr. at 356.)
On October 29, 2008, about ten days after defendant's arrest, Anderson received a letter from defendant. (Tr. at 357; Govt. Ex. 53.) The letter stated:
Phil, as you know, I've been arrested, and you are a very important witness in my case. I am writing to you to remind you to please stay in touch with my wife and my attorneys and let us know if your address changes or anything happens to you during the course of this trial. You will be asked to testify to the following: . . .
(1) to my phone call to you on or about Sunday, October 12th, in which I discussed the FBI search warrant with you and asked you to contact Art Jones, Steve Johnson, and John McLaughlin to discover what happened to this juror and to stop anyone, particularly the Creators, who may have any plans against him. . . .
(2) to our phone conference on or about Wednesday, October 15, in which I repeat the same instructions and at which Dan Jones, Rudy Orr, Mike Burks, yourself and I were in attendance. . . .
(3) you may be asked about other aspects of ANSWP activism and your reading of the overthrow.com website. The key there will be to focus on the fact that you have never done anything criminal, and do not interpret articles on overthrow.com as criminal instructions. . .
(4) you should answer all questions truthfully, honestly, and with the fullness of the answer required. Do not guess or theorize.
(Tr. at 358-61, 369.) Asked how he interpreted this letter, Anderson answered: "I figured that's just what he's asking me to testify about." (Tr. at 361.) Anderson testified that he turned the letter over to the FBI, heard nothing further from defendant, and had not spoken to defendant since. (Tr. at 361.)
Anderson testified that between September 11, 2008, when the Hoffman post first appeared, and October 12, 2008, the date of the FBI search of defendant's house, defendant did not contact him about the matter. (Tr. at 364-65.) During the October 12 conversation, defendant asked Anderson to contact the Creators to find out if anything was going on; but defendant did not say that he had told them to do anything to Hoffman. (Tr. at 366.)
Anderson testified that defendant never asked him to harm anyone or do anything criminal. (Tr. at 368.) Anderson stated that he had conversations with defendant prior to the Chicago conference where Elie Wiesel spoke, which defendant did not attend, and defendant did not tell Anderson to hurt Wiesel in any way. (Tr. at 369-70.) And defendant did not tell him to harm anyone else as part of his ANSWP duties, including Mark Hoffman. (Tr. at 371.)
Anderson testified that in order to become a member of ANSWP an applicant had to have "good morals," which the application defined as: not having a spouse or custody of children of non-white racial heritage within five years of the date of application;
Not having had sexual relations with a person of non-white racial heritage within five years of the date of the application;
Having not been convicted, incarcerated, or under probation or parole for any infamous crime within five years of the date of application;
Having not been treated for a mental illness with delusionary, hallucinatory, paranoid, or severe abnormal personality characteristics within ...