The opinion of the court was delivered by: Lynn Adelman District Judge
A jury found defendant William White guilty of soliciting another person to injure the foreperson of the jury that convicted white supremacist leader Matthew Hale. In a separate decision, I grant defendant's motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29. Defendant also moves for a new trial under Fed. R. Crim. P. 33. In this decision, I conditionally deny the Rule 33 motion.
The government alleged that on his website, "Overthrow.com," defendant solicited another person to harm "Juror A" by displaying a post entitled, "The Juror Who Convicted Matt Hale," which read:
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]. (Indictment [R. 5] at 2 ¶3, alterations in original.) As circumstances strongly corroborative of defendant's intent that another person harm Juror A, the indictment alleged that defendant was aware that white supremacists, Overthrow.com's target audience, sometimes committed acts of violence against persons perceived as acting contrary to the interests of the white race. The indictment further alleged that defendant had previously posted on Overthrow.com what purported to be the home addresses of individuals he criticized on the website, at times stating that they should be harmed, setting forth various examples. In February 2009, the government obtained a superseding indictment, which set forth additional posts allegedly corroborative of defendant's intent that Juror A be harmed, including posts regarding the murders of Judge Joan Lefkow's husband and mother; an e-mail with the home address of various federal prosecutors, agents, and others involved in the Hale matter that had been circulating among white nationalist discussion groups; and defendant's apparent mental state.
After the government filed the superseding indictment, defendant moved to recuse the judges in the Northern District of Illinois based on the references to the Lefkow murders; the court granted the motion, and the case was re-assigned to me. I denied defendant's motions to transfer the case to another district and to disqualify the United States Attorney's Office for the North District of Illinois, but authorized defendant to file additional motions relating to the superseding indictment. Defendant subsequently moved to exclude the "non-Juror A" posts under Fed. R. Evid. 404(b), to strike those posts from the indictment as surplusage, and to dismiss the indictment on various grounds; the government moved to empanel an anonymous jury at trial.
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 18 U.S.C. § 373.*fn1 United States v. White, 638 F. Supp. 2d 935 (N.D. Ill. 2009). The Seventh Circuit reversed and remanded the case for trial. United States v. White, 610 F.3d 956 (7th Cir. 2010).
Following the issuance of the appellate mandate, I held a telephonic status conference, at which the parties identified the motions unresolved during the case's previous pendency in this court: the government's motion for an anonymous jury and defendant's motions to exclude evidence under Fed. R. Evid. 403 and 404(b), to dismiss based on grand jury abuse, and to strike surplusage from the superseding indictment. With the agreement of the parties, I set the case for trial on January 3, 2011. On December 16, 2010, I issued a decision denying defendant's motions and granting the government's request for an anonymous jury. Prior to the trial, the parties submitted proposed jury instructions. Defendant requested that I instruct the jury on the First Amendment, submitting six proposed instructions. The case proceeded to trial on January 3, 2011. On January 5, the jury returned a verdict of guilty.
Rule 33 provides: "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Relief under Rule 33 is reserved for extreme or exceptional circumstances, see, e.g., United States v. Linwood, 142 F.3d 418, 422 (7th Cir. 1998), such as where legal errors or admissions deprived the defendant of a fair trial, United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989).
"If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination." Fed. R. Crim. P. 33(d)(1). Accordingly, even though I have granted defendant's Rule 29 motion, I must nevertheless conditionally decide the Rule 33 motion.
Defendant seeks a new trial on three grounds. ...