Hate Crime Motivation Enhancement in Illegal Gun Possession Case?

An interesting federal government argument, in a case pending in D.C. (U.S. v. Calloway).

|The Volokh Conspiracy |

Clark Calloway, Jr. pleaded guilty to illegally possessing a machine gun, being a felon in possession, and receiving a gun in interstate commerce with intent to commit a felony. The presentence report recommended a sentence of 37 to 46 months (based in part on the defendant's criminal history, which is Category III, meaning significant but not vast).

The federal hate crime sentencing enhancement wouldn't be applicable to such crimes, because it requires targeting a particular victim or property based on a person's race, religion, and the like; that can apply to crimes of violence (or even vandalism), but not to illegal gun possession and receipt as such. The government, though, argues that a range of 97 to 120 months would be proper, based in part on the defendant's ultraviolent plans and in part on the defendant's intent to target people for killing based on race and religion:

The defendant has regularly communicated via Facebook his support for ISIS ideology and those who have committed violent terrorist acts. See id. at ¶¶ 15 (including stating the perpetrators of the Garland, Texas shooting relating to the "Muhammad Art Exhibit & Contest" event were "martyrs"), and 16-19. These threats progressively worsened, and by late 2016, the defendant's rhetoric and threats had escalated significantly and he began to espouse his own desires to commit violent crime in the name of his ideology, and the need to do so immediately. See id. at 16-19, 55 and 56. He shared this desire to punish the West and the United States with at least three other people, CHS1, CHS2, and CHS3, during this same period, see id. at ¶ ¶ 20-53, and the statements coincided with the defendant's efforts to obtain firearms from multiple sources. See id. at ¶ 31 (attempting to acquire assault weapon from witness who later became CHS2, and describing the weapon as a "Kuffar Killer"); and Gov. Opp to Def. Mot. To Dismiss (Docket 29) at 5-6 (defendant attempting to acquire firearms from a non-governmental source, Witness 4 ("W4"), in October 2016). These actions all predated the defendant's successful acquisition of the firearm from CHS3 in May 2017, by which time the defendant himself stated he was ready to commit violence with the weapon. Id. at ¶ 46-55.

[Footnote moved: On September 20, 2016, in communicating with Confidential Human Source 1 ("CHS1") about a terrorist attack that took place in New Jersey and New York, the defendant stated "Good. MaashALLAH! This entire place is insane! May ALLAH destroy it, as it destroyed Sodom, and Gomorrah!" Complaint ¶ 23. On September 25, 2016, the defendant stated that he preferred "Jihad" to "Dawah" (sharing the word of Allah as expressed in the Qur'an) and that "I hate al kaffiroon [disbelievers] anyway." Id. at ¶ 24. He also acknowledged he was a "soldier of Allah" and that he had made Facebook "friends" with several individuals he believed were ISIS members. Id. at ¶ 25. That same day, the defendant stated that he knew of an individual that was arrested, charged, and convicted of a plot to kill U.S. military personnel at Fort Dix Military Base in New Jersey, stating, "This government must be overthrown. Wallahi [I swear by God]. I'm going to kill some of these crackers before the death angel approaches. I have a vendetta against them … InshaALLAH [God willing(hopefully)]. The battlefield will be here shortly. InshaALLAH." Id. at ¶¶ 27-28. He also told CHS3 on March 6, 2017, "I hate these Kuffar [non-Muslims]. Not only are they nasty, they are filthy and stupid. InshaALLAH, their time is coming. Cracker Trump just issued another Ban on 7 Muslim countries. InshaALLAH, the end is near!" Id. at ¶ 41.]

The defendant's desire to commit violence was not limited to non-Muslims. He also regularly advocated for the killing of white people. Id. at ¶ 17 (advocating a race war against whites and stating, "Let's put bullets in them"); ¶ 28 (having a "vendetta" and wanting to "kill some of these crackers"); ¶ 39 (wanting to "kill these crackers one day"); and ¶ 50 (wanting to use AK-47 against "crackers" instead of "kuffar"). He also regularly advocated for violence and death against law enforcement. Id. at ¶ 19 ("two pigs were just shot in Boise, Idaho," apparently referencing a shooting of law enforcement officers in Idaho, and stating "choose the bullet over the ballot"); ¶ 54 c. ("When this race war kicks off, we ain't just slaughtering the Neanderthal. We are executing coons too. I call it "coon" hunting with an AK-47!") [The defendant stated after he was arrested by the FBI, that "coon" in this message referred to African-Americans he considered disloyal, and "Neanderthal" or "cave dweller" referred to a white person.]; ¶ 55 i ("military and combat veterans: Prepare for death"); ¶ 55 dd. (placing bounty on police officers who killed black man); and ¶ 55 hh. and ii ("Somebody should shoot that cracker cop that killed that young boy in Texas…. Its time we start killing them," and "Brothers are shooting these cops back. Good.").

(More details here.) There were also evidence of some targeting of Jews ("The defendant also posted 'Death to the European, fake, Jewish imposters'") but slight compared to the other material. Here's a summary of the government's argument, both as to hate crime motivation and the other components:

The features of this case that take it "outside the heartland" of U.S.S.G. § 2K2.1 [and thus justify a departure from the presumptive sentence] are: (1) the defendant's professed allegiance to terrorist groups and ideology; (2) his intent to inflict mass murder; (3) his desire to cause fear in the populace in an effort to cause a revolution; (4) his intent to commit violence based upon his hatred of the victims' race (white), religion (non-Muslim), and occupation (law enforcement); (5) his repeated and determined efforts to obtain a firearm; and (6) his continued adherence to the same intolerant ideology since being incarcerated.

The defendant's lawyer has responded, in part:

Undersigned counsel has never questioned the accuracy of Mr. Calloway's Facebook posts that the government has repeatedly referenced in their filings. During the October 10, 2019 hearing, undersigned counsel stated as much. Likewise undersigned counsel does not dispute the statements attributed to Mr. Calloway when he was being secretly recorded by the confidential informants. However, the statements were made in the course of conversations that focused on other topics that had nothing to do ISIS, violence, race war, kuffars and rednecks. The government has followed a familiar pattern of lifting and referencing only the damaging statements and strung them along as though that was the sole focus or content of Mr. Calloway's conversations.

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  1. “based in part on the defendant’s ultraviolent plans”

    Wouldn’t that be redundant to the “intent to commit a felony” component of what he was charged with?

    1. I will not be sorry when they toss this loser’s ass in the clink for a long, long time.

      1. Well, neither will I, he sounds like a real piece of work.

        But I really dislike the “some animals are more equal than others” aspect of hate crime laws. Look, prosecute the act, not the motive, I don’t freaking CARE why the dude wanted to commit mass murder.

        1. Ditto. Hate crime laws and enhancements are a travesty of justice. Remind me of idiots who excuse Stalin’s and Mao’s murders as compared to Hitler’s because Hitler’s were more “targeted”. Dead is dead. Murder is murder.

        2. Yeah, I hear you Brett. Still though, nothing would please me more than to ship this MFer’s ass to some shithole somewhere in the world. Then let him go do whatever. He might even survive.

        3. But we prosecute based on motive all the time. It’s the difference between manslaughter and murder. I don’t have a problem with adding another level to it, it’s like ‘malice aforethought’ against a whole group of people based on a common characteristic. The government’s argument is a bit of a stretch for applying it to illegally possessing firearms, but I don’t mind that they are trying.

          1. Yeah, that’s the “some animals are more equal than others” part I mentioned. In theory, deciding to kill somebody because of their membership in any group could be a “hate crime”, in practice it doesn’t work that way.

            The difference between manslaughter and murder is the intent to kill. Here the difference that’s being invoked is who you mean to kill.

            But we’re all equal before the law, it shouldn’t MATTER who you mean to kill, and aside from self defense, or defense of others, why. Dead is dead, people are people.

            1. Hate crime is an intent crime as well.
              It’s not about who, it’s about why.

              Check around, there have been some small number of anti white hate crime cases as well.

              1. A very small number.

                I understand the concept, it’s just that I reject it.

                If anything, it dignifies the offender too much. You meant to kill, under circumstances where killing was not justified? Well, that’s all we need to know, your twisted reasons are irrelevant, I don’t care if you were mad, had some ideology behind it, your neighbor’s dog was beaming messages to your brain.

                1. “your neighbor’s dog was beaming messages to your brain”

                  Interesting dog.

          2. It’s because hate crimes are thought crimes.
            They are additional charges added on based on the (presumed) beliefs of the actor.

            The person is already being charged with whatever crime they committed (or intended to commit)… and then these thought crimes are added on after that.

            I *really* do not like the government prosecuting people for their thoughts.

            1. It’s about intent, not beliefs.

              I’m not super into hate crime legislation myself, because I do think it’s overcharged and is generally more trouble than it’s worth, but just like manslaughter can become murder, intent to silence a certain class can be an intent that enhances an act to be worse.

              1. It is about beliefs. A person without certain beliefs would not form certain intents. You can’t separate the two. These are not merely correlated, but there is a complete causal relationship between the two. But for the belief, there would not be the intent. Evidence of the belief is evidence of the intent.

                I am also against “hate crime” laws for three reasons.
                (1) We are getting too close to creating thought crimes. (The additional time served is ultimately for having despicable thoughts and expressions.)
                (2) We have an over-incarceration problem. Perhaps some of these despicable thoughts and expressions are due to untreated mental illness? Is the solution to despicable thoughts and expressions extra prison time?
                (3) We are treating victims unequally. An injury to one victim is treated differently to an identical injury to another victim, all based on very subjective criteria. We already see this with enhancements for crimes against police officers or firefighters. It starts to get to creating classes of people who are more important than others. Who are protected by the criminal law more than others.

                1. I disagree. One could argue that murder is also about a belief that the victim should be dead.

                  Overincarceration isn’t really due to the sliver of a margin in for hate-crimes. If it’s a problem with untreated mental illness, targeting this particular offense is amazingly underinclusive.

                  The unequal treatment problem is an as-applied problem, which doesn’t mean that’s not a good reason to be against the legislation.

                  So I continue to think the throughtcrime argument is a bogus talking point, but that hatecrime legislation is of marginal benefit for the cost in bad application.

                  1. I disagree. One could argue that murder is also about a belief that the victim should be dead.

                    Sure, one could argue that…if one wanted to sound like an idiot.

              2. “intent to silence a certain class can be an intent that enhances an act to be worse.”

                The only class that matters here is “innocent people”. Once you’ve decided you’re going to murder innocent people, you’ve maxed out that dimension of the crime. The fundamental moral equality of people demands that.

              3. “Intent” determine which specific variety of homicide a crime falls into, or whether an act is negligent. This works (sort of) because the intent is used to determine what act was performed or attempted.

                But hate crimes are additional charges beyond that, and they are based on the opinions and beliefs of the criminal. Those opinions do not change the act performed, or the desired outcome of the act performed (that would be your “intent”) – instead they are the justifications the criminal used to convince themselves to perform the act.

                That is, literally, thought crime.

    2. I don’t think this involved prosecution for a violent crime. Isn’t the felony mentioned just “felon in possession?”

      1. If the speech they’re targeting here isn’t enough to nail him on intent to commit a felony, why should it be enough to serve as a sentence enhancement?

        1. I didn’t say it did, but you did wonder how it wasn’t redundant even though violence wasn’t involved in the felony charge.

    3. Wouldn’t that be redundant to the “intent to commit a felony” component of what he was charged with?

      No.

      As the government’s sentencing memorandum points out, that offense (and the guidelines enhancement for possessing a firearm to facilitate a felony) applies to any felony. The fact that the defendant intended to commit an exceptionally serious felony strikes me as highly relevant.

      1. The “exceptionally serious felony” he was intending to commit was just being a felon in possession of a firearm. He was not brought up on charges related to his violent wishes.

        1. The “exceptionally serious felony” he was intending to commit was just being a felon in possession of a firearm.

          Incorrect. The target crime alleged in Count 1 of the indictment is “Assault with a Dangerous Weapon, in violation of 22 D.C. Code, Section 402.”

          1. More or less as I thought.

            So, if his murderous intent was actually a charge he was sentenced on, how can it also be a sentence enhancement? Isn’t that double counting?

  2. I thought “felon in possession” was good for up to 10 years. Along with the other stuff, seems like 3 or 4 years is p

  3. Since this is not simple possession, but possession with intent to commit a felony, the nature of the felony intended would appear relevant.

    Whether this felony should be a federal crime or not is a separate question. But given that it is, it follows that it’s relevant to sentencing for a crime involving intent to commit it.

  4. This dude is a serious redneck. All he really needs is a body jacked pickup with different flags on it.

    I only question one thing. And I am not saying we shouldn’t punish or anything silly like that, but are we sure the best course of action to correct this person is to lock him in a building where there’s a good likelyhood of other like minded individuals co-habitating so that they can radicalize together?

    Just a thought.

    1. No, actually I think that’s a lousy idea.

      On the one hand, we don’t want people like this wandering around in public, because, forget laws against felons owning weapons, if he’s out in public, he WILL be able to kill people.

      On the other hand, if we’re not going to just execute him, locking him up in solitary will just drive him insane. Insaner, maybe. It’s a particularly cruel sort of torture that erodes the sanity, humans aren’t made to be alone.

      But we don’t want him freely associating with other sociopaths, and trading ideas around, either. Not to mention regularly assaulting each other; It’s an outrage we treat that as just part of the punishment.

      Too bad we can’t just stick people like this in some virtual reality, where they can interact enough with unreal “people” to stay sane, but nobody is in reach to hurt.

      1. I approve this comment.

  5. This guy’s statements seem remarkably similar to some of the comments offered over a period of years by the Volokh Conspiracy’s carefully cultivated class of conservative followers.

    Those comments proposing putting liberals’ corpses face-down in landfills, gassing non-conservatives, machine-gunning Democratic federal judges, and the like were not nearly as bad as the comments for which Prof. Volokh censored Artie Ray Lee Wayne Jim-Bob Kirkland, of course, but some people could see them as objectionable nonetheless.

  6. Hmmm… North of the Border, the only source for an illegal machine gun is a FBI sting operation. South of the Border, one would look to non-US sources. Felon-in-possession of a machine gun or felon-in-possession of a Glock 9mm handgun is not the issue, it’s the intent to kill. The sentence enhancement part comes when he’s locked up with the inmates he’s planned to target.

    1. Pro ISIS, anti-cop, pro cop killing? If he’s locked up he will be with inmates he pretty much agrees with already. He’s be welcomed. Those guarding him may feel differently of course.

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