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Ninth Circuit:
Hate Crime Enhancement Requires More Than Targeting
Majority Says Selection of Victim Because of Protected Characteristic Is Insufficient Absent Proof of Animus; Christen Writes Separately, Saying Hate ‘Bakes in’ When Person Is Chosen ‘Because of’ Membership
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that application of a federal hate crime sentencing enhancement where the defendant selects a victim “because of” certain characteristics—such as race, sexual orientation, and religion—requires a finding of animus toward members of the protected group and that the defendant was not targeting members of a vulnerable group for some other reason.
Finding the term “because of” to be ambiguous, the court looked to the legislative history and title of the “Hate Crime Motivation or Vulnerable Victim” in reaching its conclusion.
Challenging the application of the enhancement, found in the U.S. Sentencing Guidelines Manual §3A1.1(a), was Derrick Patterson, a Compton man who pled guilty to robbery and identity theft, in violation of 18 U.S.C. §§1951 and 1028(a)(1).
Sec. 3A1.1(a) provides for an enhancement of a defendant’s sentence “[i]f…the court at sentencing determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person….”
String of Robberies
In the criminal complaint, Patterson is accused of committing a string of robberies between 2020 and 2022 using the dating app Grindr—a platform dedicated to gay, bisexual, and transgender individuals—to arrange meet-ups at a victim’s home or hotel room.
Once a meeting took place, Patterson would ask to use the victim’s phone and transfer money to himself using payment apps, such as Venmo and Apple Pay. If the victims questioned what he was doing, Patterson responded by threatening force, on one occasion brandishing a kitchen knife and on another using a stun gun.
Patterson admits to targeting gay men for the robberies but contends that he used Grindr because of the probability that the victims would be willing to meet him alone, making them easier targets.
On Nov. 21, 2002, District Court Judge John F. Walter of the Central District of California found that the enhancement applied, reasoning that the statutory language does not require that the defendant be motivated by hate and saying that Patterson “actively targeted gay men because [he] exploited his victims’ sexual interest in him and his familiarity with gay culture to make his robberies easier and more successful.” Walter sentenced Patterson to nine years and three months in prison and ordered him to pay an aggregate of $84,195.74 in restitution.
Senior Circuit Judge A. Wallace Tashima authored the opinion vacating the sentence. He wrote:
“The title, history, purpose, and ordinary understanding of the term ‘hate crime’ all indicate that application of the enhancement requires the trier of fact to find beyond a reasonable doubt that the defendant acted with animus.”
Circuit Judge Lawrence VanDyke joined in the opinion. Circuit Judge Morgan Christen wrote separately, concurring with the result but disagreeing with the analysis.
Ambiguous Guideline
Tashima acknowledged that a statutory title will not override the plain language of a statute but said that it may be used as an interpretive tool to understand ambiguous terms.
Given this framework, he reasoned:
“[T]he title, Hate Crime Motivation, has a focused meaning based on the ordinary understanding of a hate crime—that the defendant is motivated by hate or animus for the victim because of one of the protected characteristics. The guideline’s history clearly sets forth the requirement that the enhancement applies when the defendant is motivated by hate or animus based on one of the protected characteristics.”
He continued:
“[T]he fact that the victims are from a protected group does not necessarily mean the defendant was motivated by animus toward that group. Instead, the enhancement applies if the trier of fact finds beyond a reasonable doubt that the defendant was motivated by hate or animus against a protected group in choosing the victim.”
Similar Statutes
Tashima noted that “[t]his interpretation of the phrase, ‘because of,’ in § 3A1.1(a) is consistent with its interpretation in similar statutes” and that cases applying those laws “support the conclusion that § 3A1.1(a)’s requirement of a finding beyond a reasonable doubt that the defendant chose the victim ‘because of’ a protected characteristic should be construed as requiring animus.”
The judge concluded that interpreting the guideline to demand animus toward the protected group means that “the hate crime enhancement does not apply where a defendant chooses victims in a protected group for reasons other than a hate motive.”
Applying the standard to the facts surrounding Patterson’s crimes, he opined:
“Patterson used the dating platform Grindr to find people who would be willing to meet him alone so that he could rob them. That is, their membership in the protected group was a proxy for other information about them – their willingness to agree to meetings where he knew they would be alone. This is insufficient to impose the hate crime enhancement without finding beyond a reasonable doubt that Patterson was motivated by hatred or animus of the victims because of their membership in the protected group.”
Christen’s View
Christen remarked:
“I reach the same conclusion as the majority, but I arrive there by a different path. In my view, the hate crime motivation enhancement is unambiguous. It requires a determination that the defendant, having decided to commit a criminal act, ‘intentionally selected’ the victim of the offense ‘because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person.’ ”
She continued:
“By requiring a finding that the defendant selected the victim ‘because of’ the victim’s actual or perceived membership in a protected class, the enhancement bakes in the requirement that the protected characteristic at issue—e.g., sexual orientation—was the defendant’s motivation for selecting the victim. In my view, nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement.”
Turning to the present case, she argued:
“Imagine a record that establishes that a woman decided to commit theft offenses by responding to provocative ads and inviting men into her home where she would have access to their wallets. Without more, it is not possible to conclude that this hypothetical woman bore animus toward her victims on account of their gender. All that can be concluded is that she was motivated to commit theft offenses and that her victims happened to be men as a consequence of the particular modus operandi she employed. The same is true in Patterson’s case: because he used Grindr to lure his victims, Patterson’s victims were gay men. But nothing indicates that it was his victims’ sexual orientation that motivated Patterson to steal from them.”
The case is U.S. v. Patterson, 22-50287.
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