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Tuesday, November 26, 2019

Hate Crime Motivation Enhancement in Illegal Gun Possession Case?

By Eugene Volokh - November 26, 2019 at 08:03AM

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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