## Facts

- Michael Brad Magleby hosted a gathering where participants made racist comments, listened to racist music, and viewed white-supremacist material.
- Magleby and a minor, L.M., agreed to burn a cross at a neighborhood home occupied by Tongans, built a wooden cross, spray-painted it black, and purchased gasoline.
- After seeing several people outside the intended target home, they decided not to proceed there.
- L.M. directed Magleby to another residence described as occupied by a “crackhead” or an African-American; they burned the cross outside that home.
- The home belonged to the Henry family—an interracial couple and their child—who testified the cross-burning caused terror and was understood as a racist threat.
- A federal jury convicted Magleby of: (1) conspiracy against rights (18 U.S.C. § 241), (2) interference with housing rights and aiding and abetting (42 U.S.C. § 3631(a)), (3) using fire to commit a federal felony (18 U.S.C. § 844(h)(1)), and (4) witness tampering (18 U.S.C. § 1512(b)(1)).
- Magleby appealed, challenging the sufficiency of the evidence and arguing, among other points, that the conduct was protected by the First Amendment and that the “use of fire” enhancement was inapplicable.

## Issues

1. Whether sufficient evidence supported the convictions under 18 U.S.C. § 241 and 42 U.S.C. § 3631(a), including proof of a conspiracy, a “threat,” and the required intent to intimidate based on race and to interfere with housing rights.
2. Whether the cross-burning constituted protected expressive conduct under the First Amendment or an unprotected “true threat.”
3. Whether 18 U.S.C. § 844(h)(1) applies when fire is used as a means of intimidation in committing a federal felony.
4. Whether sufficient evidence supported the witness-tampering conviction under 18 U.S.C. § 1512(b)(1).

## Decision

- The Tenth Circuit affirmed Magleby’s convictions and sentence.
- The court held the evidence was sufficient for a reasonable jury to find a conspiracy to threaten or intimidate the Henry family in the enjoyment of federally protected housing rights under § 241.
- The court held the evidence was sufficient to find Magleby willfully intimidated or interfered with the Henrys’ housing rights “because of” race under § 3631(a).
- The court rejected the First Amendment challenge, concluding the cross-burning in context was a “true threat,” not protected expression.
- The court upheld the § 844(h)(1) conviction/enhancement, treating the cross-burning as “use of fire” in committing the § 241 felony.
- The court upheld the witness-tampering conviction, finding sufficient proof Magleby attempted to influence a witness’s testimony in an official proceeding.

## Legal Principles

- Sufficiency review is highly deferential: the question is whether, viewing direct and circumstantial evidence and reasonable inferences in the government’s favor, a reasonable jury could find guilt beyond a reasonable doubt.
- For § 241, a “threat” may be evaluated under an objective standard: whether a reasonable person would perceive a threat under the circumstances.
- Cross-burning directed at a person’s home, when used to intimidate, can constitute a “true threat” and falls outside First Amendment protection; federal statutes aimed at threats and intimidation may be applied to such conduct.
- Under § 3631(a), the jury may infer race-based and housing-related intent from circumstantial evidence, including racial targeting, planning, and the historical meaning of the conduct.
- Section 844(h)(1) reaches the use of fire as an instrumentality of committing a federal felony, including symbolic intimidation integral to the underlying offense.
- Witness tampering under § 1512(b)(1) is supported by evidence of attempts to influence, delay, or prevent testimony in an official proceeding.

## Conclusion

The Tenth Circuit affirmed Magleby’s civil-rights and related convictions, holding that the planned cross-burning at an interracial family’s home constituted an objectively threatening act and an unprotected true threat, supported findings of race-based interference with housing rights, justified the “use of fire” penalty, and was accompanied by sufficient evidence of witness tampering.


United States v. Magleby, 241 F.3d 1306 (10th Cir. 2001)