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Sample Trial Brief—Conspiracy to Deprive Civil Rights

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]