UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
No. 91-32-01-CR-5
UNITED STATES OF AMERICA
v. TRIAL BRIEF OF THE
UNITED STATES
LLOYD RAY PICHE
On March 26, 1991, the Grand Jury returned an eight count indictment
against defendant Lloyd Ray Piche. The charges arise out of an incident in
which
seven Asian-Americans were intimidated and harassed by the defendant and
his
brother while the victims were playing pool at the Cue-N-Spirits, a place
of
public accommodation located in Raleigh, North Carolina. The conduct of
the
defendant and his brother, Robert Piche, caused the death of one of the
victims,
Ming Hai Loo.
- SUMMARY OF THE FACTS
- On July 28, 1989, Ming Hai "Jim" Loo, Lanh Tang, Chi Cuong "Jim" Ta,
Ton
That Thai Nguyen, Tai Trong Le, Hong Thanh Nguyen, and Minh Van Lam were
playing
pool at the Cue N Spirits, a pool room/bar establishment located in
Raleigh,
North Carolina. Among the customers drinking at the bar were two brothers,
Robert and Lloyd Piche. After watching the Asians play pool for a while,
the
Piche brothers began verbally harassing the Asians by stating their dislike
for
Asians, particularly Vietnamese, and by attempting to goad the Asians into
a
fight. The primary instigator of the harassment was Lloyd Piche who
continually
made remarks to the effect that he did not like Asians and that Asians
should not
be allowed in the country, as well as referring to them as "gooks" and
"chinks."
Throughout the intimidation, the Asians tried to ignore or get away from
the
Piches.
- Eventually two of the Asians left the pool table and approached the
bar
area of the establishment in order to use the phone. At that time, Robert
Piche
began verbally harassing Jim Loo at the bar. The argument escalated and
Robert
Piche took off his belt, holding it in a manner in which the belt buckle
could
be used as a weapon. The bartender told both the Piches and the Asians that
they
would have to leave.
- At that time, several of the victims and the Piche brothers went
outside.
As the victims were attempting to get to their cars to leave, Robert Piche
went
to his car and retrieved a shotgun. He approached Lanh Tang and swung the
shotgun at him, only missing because Tang ducked and stepped backwards.
Lloyd
Piche grabbed Tang and attempted to hold him down as Robert continued to
approach. Just before Robert swung again, Tang escaped Lloyd's grasp and
again
ducked out of the way. The shotgun slipped from Robert's hands and broke as
it
hit the ground.
- Robert Piche then went back to his car and retrieved a pistol from the
trunk. He began chasing Tang but stopped after running a few feet. As
Robert
was walking back in the direction of his car, he spotted Jim Ta and Jim Loo.
Robert approached them and swung the pistol, striking Loo who immediately
fell
to the ground. Lloyd, upon seeing Loo injured and on the ground, began
laughing
and making derogatory comments about Loo.
- Loo was taken to the hospital but died from his injuries a day later.
The
cause of death was the injuries sustained by broken facial bones entering
the
brain.
SUMMARY OF THE LAW
- Count One - Conspiracy to Deprive Constitutional Rights -
18
U.S.C. § 241
- Introduction
- In Count One of the Indictment, the defendant is charged with
conspiring
to deprive the victims of their constitutional right to use the facilities
of a
place of public accommodation, in violation of 18 U.S.C. § 241. That
statute
provides as follows:
If two or more persons conspire to injure, oppress, threaten, or
intimidate
any citizen in the free exercise or enjoyment of any right or privilege
secured
to him by the Constitution or laws of the United States..., [t]hey shall be
fined
not more than $10,000 or imprisoned not more than ten years, or both; and
if
death results, they shall be subject to imprisonment for any term of years
or for
life.
18 U.S.C. § 241.
- Section 241 differs substantially from the general conspiracy statute,
18
U.S.C. § 371, even though many of the same principles of conspiracy law
still
apply. First, under § 241, the United States is not required to prove
that
any of the co-conspirators committed any of the overt acts alleged in the
Indictment. See Government's Proposed Instruction No. 3; United States v.
Morado, 454 F.2d 167, 169 (5th Cir. 1972); United States v. Skillman, 922
F.2d
1370, 1375-76 (9th Cir. 1990). Second, under § 241, as compared to
§
371, the United States must prove that the victims were inhabitants of the
state
of North Carolina. See United States' Proposed Instruction No. 8. Further,
the
purpose of a § 241 conspiracy must be, specifically, to interfere with
a
protected right whereas the purpose of a § 371 conspiracy may be to
violate
some other enumerated law. See United States' Proposed Instruction No. 9.
- Elements of the Offense Charged in Count One
- The offense described in Count One of the Indictment has five
elements:
- Two or more persons must conspire, that is, there must be a
conspiracy.
- The purpose of their conspiracy must be to injure, oppress, threaten,
or
intimidate another person.
- One of the intended victims must be an inhabitant of the state of
North
Carolina.
- The conspiracy must be directed at the free exercise or enjoyment by
the
victim of a right or privilege secured to him by the Constitution or laws of
the
United States.
- The acts of the defendant resulted in the death of Ming Ming Hai Loo.
See Government's Proposed Instruction No. 3.
- Conspiracy
- The first element requires proof of a conspiracy. A conspiracy is a
combination of two or more persons to accomplish some unlawful purpose, or
to
accomplish a lawful purpose by unlawful means. Thus, a conspiracy is a kind
of
partnership in criminal purposes in which each member becomes the agent of
every
other member. The gist of the offense is a combination or agreement to
violate
or disregard the law. See Government's Proposed Instruction No. 4. The
conspiracy need not be of long duration nor must the agreement between the
co-conspirators be express or formal. See Government's Proposed Instruction
No.
4.
- In order to establish that the conspiracy existed and was willfully
formed,
as required by the first element of the offense, the evidence must show that
the
defendant, in some way or manner, or through some contrivance, positively
or
tacitly came to a mutual understanding with the unindicted co-conspirator to
try
to accomplish a common and unlawful plan.
- Ordinarily, only the results of a conspiracy, rather than the
agreement
itself, are observable. The existence of the conspiracy need not be proved
by
direct evidence but may be inferred from all of the facts and circumstances
of
the case.
See Government's Proposed Instruction No. 4. Thus, the United States may
rely
upon circumstantial evidence of a tacit or mutual understanding underlying
the
actions of the joint participants in the illegal scheme, to prove the
existence
of the agreement. Traditionally, courts look to the conduct of the alleged
conspirators to find proof of the agreement.
- In this case, the evidence will show that the defendant and his
brother,
Robert Piche, formulated an unlawful plan to deprive the victims of their
right
to use the facilities of the Cue N Spirits. The existence of this
conspiracy is
evidenced by the numerous overt acts committed during the campaign of
harassment
and intimidation in which the defendant participated, none of which happened
by
coincidence, accident, or mistake.
- In addition to their conduct, the defendant and his brother made
numerous
statements during the course of the conspiracy. Lloyd Piche's statements
are
admissible against him as admissions pursuant to Federal Rule of Evidence
801(d)(2). Robert Piche's statements are also admissible against the
defendant
under Federal Rule of Evidence 801(d)(2)(E), admission of co-conspirator
statements. It is the duty of the court to determine whether the government
has
met the requirements of admissibility under the co-conspirator
exception.[FN1]
Bourjaily v. United States, 107 S.Ct. 2775 (1987).
FN1. The government must establish that a conspiracy existed, that the
defendant and the declarant were part of the conspiracy, and that the
statement
was made in furtherance of the conspiracy. United States v. Meredith, 824
F.2d
1418, 1428 (4th Cir. 1987). The government may meet its burden by a
preponderance of the evidence and the disputed statements themselves may be
considered in making the determination. Bourjaily v. United States, 107
S.Ct.
2775 (1987).
- The defendant had the opportunity and motive to agree, and the
evidence
will establish that he did, in fact, agree to deprive the victims of their
right
to use the facilities of a place of public accommodation.
- Purpose of the Conspiracy
The words "injure," "oppress", "threaten," or "intimidate," as used in
the
conspiracy statute, are not to be interpreted in any technical sense, but
may
cover a variety of conduct intended to harm, frighten, or inhibit the free
action
of other persons. See United States' Proposed Instruction No. 7. The
evidence
will show that the defendant verbally threatened the victims and assisted
in
physically assaulted some of them. Such action is clearly injurious and
threatening within the meaning of the statute. See generally United States
v.
Price, 383 U.S. 787 (l966).
- Inhabitancy of the Victims
- The statute requires proof that one of the individuals against whom
the
conspiracy was directed was an inhabitant of the state of North Carolina.
The
evidence will show that the victims were physically present in Raleigh,
North
Carolina on July 28, 1989 and indeed had lived in North Carolina for
several
years prior to the incident. See United States' Proposed Instruction No.
8.
- Object of the Conspiracy - Protected Right
- The final element of l8 U.S.C. § 241 is proof that the conspiracy
was
directed toward the exercise or enjoyment of a right secured and protected
by the
Constitution or laws of the United States. Specific intent to interfere
with the
federal right named must be proved. See United States' Proposed Instruction
No.
11. However, it is not necessary to show that the conspirators were
thinking in
constitutional or legal terms. Id. Further, the intent to violate the
federal
right need not be the predominate purpose of the act. Id. In other words,
as
long as the defendant intended to interfere with the victims' use of a place
of
public accomodation and one of his reasons for doing so was because of the
victims' race or national origin, then the defendant acted with the
requisite
specific intent.
- The Indictment alleges that the defendants conspired to deprive the
victims
of their right to use the facilities of a place of public accommodation.
Title
42, United States Code, Section 2000a prohibits discrimination on the basis
of
race or national origin in the enjoyment of the facilities of any place of
public
accommodation. Public accommodations include places of "exhibition or
entertainment" and any place "within the premises of which is physically
located
any such... establishment." 42 U.S.C. § 2000a(3) and (4). A place of
entertainment is any establishment where people go for "amusement, bodily
enjoyment, fun, recreation, diversion, relaxation, sport, pleasure, play,
merriment, festivity, celebration and revelry." Miller v. Amusement
Enterprises,
394 F.2d 342 (5th Cir. 1968). Several courts which have specifically
considered
bars or pool halls have found them to be places of entertainment. See
United
States v. DeRosier, 473 F.2d 749 (5th Cir. 1973); United State
s v. Williams, 376 F. Supp. 750 (M.D. Fla. 1974); United States v. Deetjen,
356
F. Supp. 688 (S.D. Fla. 1973).
- In addition, for the establishment in question to be a place of public
accommodation, the sources of entertainment of the establishment must move
in
interstate commerce. 42 U.S.C. § 2000a(c)(3). The sources of
entertainment
may be either mechanical or human. See Scott v. Young, 421 F.2d 143 (4th
Cir.
1970); Evans v. Seaman, 452 F.2d 749 (5th Cir. 1971).
- The issue of public accommodation is a mixed question of law and fact
and
both the Court and the jury have roles to play in deciding whether the Cue
'N
Spirits is a place of public accommodation. In analogous situations dealing
with
mixed questions of law and fact, the court instructs the jury that if they
believe the witnesses who testified regarding the disputed issue, then they
may
find that the government has met its burden with respect to that issue.
See
United States' Proposed Instruction No. 10. In other words, the jury makes
a
credibility determination while the Court determines whether, assuming the
truth
of the witnesses' testimony, the government has met its burden as a matter
of
law. See United States v. Summers, 589 F.2d 450 (5th Cir. 1979)(approving
instruction that if jury believed witnesses beyond a reasonable doubt, then
crime
did affect commerce); United States v. Hooper, 575 F.2d 496, 497 (5th Cir.
1978);
United States v. Hayes, 535 F.2d 479, 482 (8th Cir. 1
976)(approving instruction which stated that if defendant received firearm
that
had traveled across state lines, then receipt affected commerce).
- The government will present witnesses who will testify that the Cue 'N
Spirits is used for a variety of individual and group activities, in
particular
playing pool and video games. They will also testify that the pool
equipment and
alcohol used in the facility is manufactured or produced in states other
than
North Carolina. Therefore, the evidence will be sufficient to establish as
a
matter of law that the Cue N Spirits is a place of public accommodation. It
will
be left for the jury to decide whether the witnesses who will be testifying
to
this issue are credible.[FN2]
FN2. Because the issue of public accomodation should not be an issue
of
significant dispute between the parties, the United States intends to
propose a
stipulation that would eliminate the need to call several witnesses.
- The evidence will also prove that the defendant and his co-conspirator
interfered with the victims' right to use the facility because the victims
were
Asian-American. Therefore, the defendant discriminated against the victims
because of their race or national origin.
- Death Resulting
- The United States has also alleged that the defendant's conduct
resulted
in the death of Jim Loo. It is not necessary for the United States to prove
that
the defendant intended the victim to die as a result of the intimidation.
It is
only necessary that the government prove that the "death ensued as a
proximate
result of the accused's willful violation of a victim's defined rights."
United
States v. Harris, 701 F.2d 1095, 1101 (4th Cir. 1983)(internal quotation
omitted).
- The fact that the defendant was not the individual who actually hit
the
victim does not relieve him of responsibility for the death if the death
was
caused by a co-conspirator acting in the course of the conspiracy and the
act was
foreseeable. Thus, if the defendant willfully engaged in a conspiracy, the
defendant or a co-conspirator committed acts during the course of the
conspiracy
which resulted in the victim's death, and the death was a natural and
foreseeable
result of the acts, then the defendant may be found guilty under the "death
resulting" provision. See United States v. Guillette, 547 F.2d 743 (2d
Cir.
1976), cert. denied, 434 U.S. 839 (1977).[FN3] See United States' Proposed
Instruction No. 12.
FN3. The defendant may be found guilty of violating 𨵉 even if
the
jury does not find that his actions resulted in the death of Jim Loo since
conspiracy to violate a federally protected rights is a lesser included
offense
of conspiracy to violate a federally protected rights with death resulting.
The
United States has included a lesser offense charge. See United States'
Proposed
Instruction No. 13.
- Counts Two Through Eight
- Section 245 of Title 18, United States Code, provides in pertinent
part:
(b) Whoever...by force or threat of force willfully injures,
intimidates or
interferes with or attempts to injure, intimidate or interfere with
(2) any person because of his race [or] color...and because he is or has
been
-- (F) enjoying the goods, services [and] facilities...of any
facility...which
serves the public and is principally engaged in selling food or beverages
for
consumption on the premises ... or any other place of entertainment [shall
be
guilty of an offense against the United States].
- Four elements must be established in order to prove a violation of
this
statute.
First: The defendants must have used force or the threat of force.
Second: The actions of the defendants must have injured, intimidated, or
interfered with the victim named in each count.
Third: The defendants must have acted because of each victim's race or
national
origin, and because he was or had been enjoying the goods, services and
facilities, of a facility which serves the public and is principally engaged
in
selling food or beverages for consumption on the premises or any other place
of
entertainment.
Fourth: The defendants must have acted willfully.
- Proof of Force or Threat of Force
- The term "force" includes the exercise and application of physical
power
other than the power of oral or written speech. In common parlance, force
means
power, violence, compulsion, or restraint exerted upon a person or thing.
Force
may be proven by finding that the defendants committed any form of violence
against each of the victims. "Threat of force" means precisely what the
term
implies - namely, a threat, either through words or gestures, to inflict
some
harm upon another person. United States v. Griffin, 525 F.2d 710 (1st Cir.
1975), cert. denied, 424 U.S. 945 (1976); United States v. Price, 464 F.2d
1217
(8th Cir.), cert. denied, 409 U.S. 1040 (1972); 1968 U.S. Code Cong. and
Admin.
News 1837, 1838-40, 1843, 1845. See United States' Proposed Instruction
No. 23.
- Proof of Injury, Intimidation or Interference
- It is necessary to show that the defendants injured, interfered with
or
intimidated, or attempted to injure, interfere or intimidate, or aided and
abetted in injuring, intimidating or interfering with the victims. The
words
"injure," "interfere with," and "intimidate" have no technical meaning, but
are
to be understood in their ordinary meaning and cover a variety of conduct
intended to harm or frighten other persons. 1968 U.S. Code Cong. and Admin.
News
1837, 1838-40, 1843, 1845. See United States' Proposed Instruction No. 24.
- Proof that Defendants Acted Because of the Victims' Race or
National
Origin and Because They were Engaged In a Federally Protected Activity
- It is necessary to prove that the defendant intimidated the victims
because
of their race or national origin. In addition, it is necessary to show that
the
defendant's actions were also based on the fact that the victims were
enjoying
the goods, services, and facilities of a facility which served the public
and was
principally engaged in selling food and beverages for consumption on the
premises
or any other place of entertainment. Price, 464 F.2d 1217; Griffin, 525
F.2d
710. Given the existence of the defendant's motive to interfere with the
victims' enjoyment of a public facility because of the victims' race, or
national
origin, the presence of other motives, such as personal anger, does not make
his
conduct any less a violation of 18 U.S.C. 𨵍. United States v. Johns,
615
F.2d 672 (5th Cir. 1980); United States v. Ellis, 595 F.2d 154 (3rd Cir.),
cert.
denied, 444 U.S. 838 (1979); Griffin, 525 F.2d 710; United States v.
Franklin,
704 F.2d 1183, 1192 (10th Cir. 1983).
See United States Proposed Instruction No. 25.
- The evidence will show that the defendant assaulted the victims
precisely
because of the victims' race and because they were enjoying the facilities
of a
public facility. This intent is evident not only from the defendant's
actions
but from the racial slurs and comments made by the defendant.
- Proof That Defendant Acted Willfully
- An act is willfully done if it is done voluntarily and purposely.
Specific
intent may be established from all the facts and circumstances surrounding
the
case. Griffin, 525 F.2d 710; Price, 464 F.2d 1217. It is not necessary for
the
government to prove that the defendant was aware that a law such as 18
U.S.C.
§ 245 exists. See United States' Proposed Instruction No. 25. It is
enough
to show, as the evidence will establish, that the defendant purposefully
sought
to interfere with or intimidate the victims because they are Asian-American
and
presumed to be from Vietnam and because they were enjoying the facilities of
the
Cue 'N Spirits. The defendant need not know the extent, or the federal
character, of the victims' right to enjoy those facilities. United States
v.
Screws, 325 U.S. 91 (1945); Apocado v. United States, 188 F.2d 932 (10th
Cir.
1951). United States v. Redwine, 715 F.2d 315, 319-320 (7th Cir. 1983),
cert.
denied, 467 U.S. 1216 (1984).
- The evidence at trial will show that the defendant initiated the
offense
against the victim and was immediately assisted in the commission of the
offense
by Robert Piche. Thereafter, both the defendant and his brother willfully
carried out the racially motivated assault together, aiding and abetting
each
other, and assaulted the victims because of their race and because they
were
enjoying the same facility as the defendant.
- Death Resulting
- Count Three charges that the defendant's actions resulted in the death
of
Jim Loo. As previously stated, the United States is not required to prove
that
the defendant intended to kill Mr. Loo. Rather, the United States only
need
establish that the defendant's acts contributed to or hastened the death of
Jim
Loo and were such as to create an unacceptable risk of the loss of life.
United
States v. Hayes, 589 F.2d 811, 821 (5th Cir.), cert. denied, 444 U.S. 847
(1979).
See United States' Proposed Instruction No. 26.
SPECIAL FACTUAL/LEGAL PROBLEMS
- State Trial
- Shortly after the incident, the local police arrived on the scene and
arrested both Lloyd and Robert Piche. At a probable cause hearing held on
August
21, 1989, a judge found the defendant guilty of simple assault and
disorderly
conduct and found probable cause for charging Robert Piche with second
degree
murder. Lloyd Piche was sentenced to a term of incarceration of six months
and
actually served about one month. Robert Piche was tried before a jury and
was
convicted of second degree murder. He was sentenced to a term of
incarceration
of 37 years.
- All evidence concerning the occurrence of a prior trial or probable
cause
hearing and the results should be excluded. Such evidence is inadmissible
hearsay as well as being irrelevant to the proceeding at hand. See Federal
Rules
of Evidence 401-403 and 803. See also United States' Motion in Limine to
Exclude
Evidence of State Court Proceedings Against Defendant.
- Prior Bad Acts of the Defendant
- The United States has notified the defendant that the United States
will
seek to admit evidence of prior acts of racial violence committed by the
defendant. One incident involves acts of racial hatred against a black male
who
was associating with white individuals at the Korner Pocket, a pool hall/bar
type
establishment similar to the Cue 'N Spirits, approximately one month prior
to the
incident at the Cue 'N Spirits. The second incident involves acts of
racial
intimidation against several Asian-Americans at the Korner Pocket
approximately
two months prior to the incident at the Cue N Spirits.
- The United States submits that the incidents are admissible to prove
the
defendant's racial animus, an element of each of the counts. The prior bad
acts
are admissible pursuant to Federal Rule of Evidence 404(b) to prove intent,
motive, and abscence of mistake or accident. See United States' Response
to
Defendant's Motion in Limine Concerning 404(b) Evidence.
CONCLUSION
The United States submits this Trial Brief for the assistance of the
Court.
Respectfully submitted,
John R. Dunne
Assistant Attorney General
Civil Rights Division
_______________________________
Suzanne Drouet
Marvin Krislov
Attorneys, Criminal Section
U.S. Department of Justice
P.O. Box 66018
Washington, D.C. 20035-6018
(202) 514-4152
CERTIFICATE OF SERVICE
I, Suzanne Drouet, do hereby certify that I have this date served the
within and foregoing upon the defendant by mailing a copy of same to his
attorney
of record, Elizabeth Manton, Assistant Public Defender, P.O. Box 25967,
Raleigh,
North Carolina 27611-5967, in a properly addressed and franked envelope.
THIS ________ day of ___________, 1991.
______________________________
Suzanne Drouet
Attorney, Criminal Section
Department of Justice
P.O. Box 66018
Washington, D.C. 20035-6018
(202) 514-4152
[cited in
Civil Rights Resource Manual 60]
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