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United States v. Doggart

United States District Court, E.D. Tennessee, Chattanooga

June 2, 2017


          Lee, Magistrate Judge



         Before the Court is Defendant Robert R. Doggart's renewed motion for judgment of acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure. (Docs. 185, 186.) The government has responded (Doc. 197), and Defendant has replied (Doc. 205). On March 27, 2017, the Court invited the parties to file supplemental briefs on the impact of the March 23, 2017 decision of the Court of Appeals for the Sixth Circuit in United States of America v. Clifford Leon Houston, No. 16-5007, ___ F. App'x ___, 2017 WL 1097138 (6th Cir. March 23, 2017). (Doc. 207.) Both parties filed supplemental briefs on April 4, 2017. (Docs. 210, 211).

         Having considered the parties' arguments and the evidence at trial, the Court concludes there was sufficient evidence to sustain Defendant's convictions on Counts One and Two of the Superseding Indictment, solicitation to commit a civil rights violation under 18 U.S.C. § 247(a)(1) and solicitation to commit arson of a building under 18 U.S.C. § 844(i). As to Counts Three and Four, making threats in interstate commerce on March 22 and April 9, 2015 in violation of 18 U.S.C. § 844(e), the Court determines there was not enough evidence for the jury to have found beyond a reasonable doubt Defendant made threats on those dates for the purpose of effecting a change or achieving a goal through intimidation. See United States v. Alkhabaz, 104 F.3d 1492, 1496 (6th Cir. 1997) abrogated in part on other grounds by Elonis v. United States, 135 S.Ct. 2001 (2015); see also Houston, 2017 WL 1097138, at *4. Accordingly, the renewed motion for judgment of acquittal (Doc. 185) will be GRANTED IN PART as to Counts Three and Four and DENIED IN PART as to Counts One and Two.

         I. BACKGROUND

         On July 7, 2015, a federal grand jury returned a one-count Indictment against Defendant charging him with solicitation to commit a civil rights violation under 18 U.S.C. § 247(a)(1) and 18 U.S.C. § 373.[1] (Doc. 37.) On May 3, 2016, a Superseding Indictment was returned modifying Count One and adding three additional counts: solicitation to commit arson of a building under 18 U.S.C. § 844(i) and 18 U.S.C. § 373 (Count Two) and two counts of making a threat in interstate commerce in violation of 18 U.S.C. § 844(e) (Counts Three and Four). (Doc. 84.) Specifically, Defendant was charged with the following:

(I) Between February and April 2015, engaging in solicitation to intentionally damage and destroy, through the use of a dangerous weapon, explosives, and fire, religious real property, namely a mosque in the state of New York, because of the religious character of the property, in violation of 18 U.S.C. §§ 247(a)(1) and 373;
(II) Between February and April 2015, engaging in solicitation to maliciously damage and destroy, by means of fire and explosive, a building and other real and personal property used in interstate and foreign commerce, namely a mosque in Hancock, New York, in violation of 18 U.S.C. §§ 844(i) and 373;
(III) On March 22, 2015, willfully making a threat through a telephone and other instrument of interstate commerce to kill, injure, and intimidate any individual and unlawfully damage and destroy a building and other real and personal property, by means of fire and an explosive, in violation of 18 U.S.C. § 844(e); and
(IV) On April 9, 2015, committing another offense of the kind charged in Count III.

         Defendant pleaded not guilty and was tried before a jury for eight days beginning on February 6, 2017. During the trial, the government introduced printouts of Facebook communications from February and March 2015 in which Defendant asked at least eight different individuals to join him as gunners or in attacks on “FEMA, Jihadists, and Foreign Consulates, ” specifically identifying “Papa-Oscar-November 26, Target 3” as a jihadist training facility, and asking one individual if he would travel with Defendant to Hancock, New York with a firearm and five hundred rounds of ammunition.

         The government introduced recordings of numerous telephone calls in which Defendant discussed plans to attack and destroy a mosque, school, and kitchen or cafeteria in Islamberg, an Islamic community near Hancock, New York. Defendant described Islamberg as a “Muslim training camp” and said its residents were planning terrorist activity. He discussed making an armed or unarmed surveillance trip; having a team of nine other men to attack the compound; using Molotov cocktails or a “demolition guy” to burn down the buildings; hoping not to kill anyone, but that he would be a standoff gunner and would be heavily armed; whether to make a pre-emptive strike or to wait until the federal government would declare martial law in reaction to events elsewhere; creating a “flash point” by burning down “a Muslim church or something like that”; that “those guys [unintelligible] to be killed. Their buildings need to be burnt down”; and that if Defendant found bad things during his surveillance, “people are going to die.” The evidence showed that on March 17, 2015, Defendant drove from Chattanooga to Nashville, Tennessee to meet a man from Texas with whom Defendant had already had multiple Facebook and telephone conversations regarding an attack. Unknown to Defendant, the man was a confidential source for the government (the “CS”). Defendant picked the CS up at the Nashville airport, drove him to a restaurant where the two had lunch together, and then drove the CS to his hotel. Defendant and the CS discussed strategies for attacking Islamberg, how many people would be needed, who those people would be, and what weapons, ammunition, and equipment they would need. Defendant gave the CS literature on Islamberg, including a map identifying the buildings he intended to destroy, along with literature on New York's gun laws. Defendant also showed the CS an M-4 rifle and a shotgun he had brought with him to Nashville, saying he had brought them to show the CS his intentions were serious.

         The evidence also included multiple telephone conversations between Defendant and a man in South Carolina named William Tint. Defendant and Mr. Tint discussed a possible joint political run, as well as plans to attack Islamberg. On March 22, 2015, the date identified for the threat offense in Count Three, the following exchange took place as part of a conversation between Defendant and Mr. Tint:

Defendant: . . . . Hey, um, I appreciate this phone call and I am going to start making these phone calls here, ah, to the rest, to the rest of my, my nine guys and, uh, you know, see if I can't get them committed, find out what their kind of equipment they have on, what their experiences are, what kind of gunners they are, and, ah, you know, what they know about of tactics and all that stuff. If we are going up there to that little Islamberg, we are going to have to burn it down. Uh, I don't want to kill anybody, but if we burn down their, uh, and there's our three targets. There's the kitchen, there's the, uh, the mosque, and uh, and uh, then there of course is uh, their school. If we take out those three components, those three buildings, and we can just walk away. And, we will have taken care of that. Now, you know, if they start laying down fire on us, we are just going to have to take them out.
Tint: I have an EOD guy.
Defendant: Okay.
Tint: I don't know if you know what that is but, um, it's demolition.
Defendant: Yeah, yeah. Okay. Well then, that is, that is important because we were going to discuss before going up there, what kind of incendiary devices we're going to use, what kind of accelerants we're going to use. Uh, if, if we have a, a, you know, a demolition device that can just, you know do a single explosion to do enough damage to burn a building down, that's the best part. You know, I don't want to have to throw a gallon of gas in there and you know, burn some kind of thing to light it up and hope it, you know, hope it burns down. We need to know it has to burn down. Demolition guy, ah, yeah, that, that would do it.

         On March 29, 2015, Defendant drove to South Carolina to visit one of his daughters and to meet Mr. Tint in person. As with the trip to Nashville, Defendant took weapons with him to South Carolina. The meeting with Mr. Tint, however, did not take place.

         On April 9, 2015, the date identified for the threat offense in Count Four, Defendant met for lunch in Chattanooga with the CS, another Facebook contact of Defendant's who had travelled in from Illinois, and a local real estate agent. Defendant discussed coordination and tactics for an attack on Islamberg, whether or not the attackers could escape, who would participate in the attack, the threats posed by the residents of Islamberg, conducting reconnaissance, whether to attack preemptively or reactively, and what the effects of an attack would be. At the end of the meeting, Defendant told the CS he did not want to kill children, but there was always collateral damage. Later that day, Defendant had another telephone call with Mr. Tint. Defendant said he would ...

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