UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

 ) No. 12 CR 395

v. ) Hon. Robert W. Gettleman

 )

BRIAN JAMES MOUDRY )

GOVERNMENT’S POSITION PAPER ON SENTENCING

At approximately 4:00 a.m., on June 17, 2007, in Joliet, Brian James Moudry,

defendant, an admitted white supremacist set a residence located a few houses down

from his own on fire.1 At the time of the fire, the house was occupied by one adult and

eight children–ranging from four to fourteen years of age. Defendant, motivated by

hatred, set the house on fire because it was occupied by African Americans. 

Thankfully, Victim A, a minor child, who lived in the residence, observed the fire soon

after it was started, woke her mother and the fire was extinguished by a police officer

responding to the 911 call before anyone inside the residence sustained injuries.

As a result of his conduct, defendant was charged in a three-count indictment.

On January 18, 2013, defendant Moudry pled guilty to Count Two of the Indictment

which charged defendant with the use of fire in the interference of another occupying

a dwelling because of the occupant’s race, in violation of Title 42, United States Code,

Section 3631(a). 

1

Moudry’s membership in white supremacist groups is documented, in part, by

his own admissions as well as photographs recovered from his house and taken of his

residence, attached as Exhibit A.

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Based on defendant’s conduct and for the reasons spelled out in this Position

Paper, the government requests that this Court impose a sentence of 10 years’

imprisonment – the Guideline range applicable in this case and the maximum possible

penalty for this offense. Further, the terms of the plea agreement entered into between

the parties is governed, in part, by Rule 11(c)(1)(C). Pursuant to the terms of the plea

agreement, the parties have agreed that the sentence imposed by the Court shall

include a term of imprisonment in the custody of the Bureau of Prisons of 120 months. 

I. FACTUAL BACKGROUND

The government has set forth its version of the offense, which was adopted in

summary fashion in the PSR, and which is supported by the following evidence: (1)

under oath testimony, (2) witness statements documented in FBI 302s, (3) reports from

the Joliet Police Department, (4) photographs and (5) defendant’s written plea

agreement. The government will first set forth defendant’s criminal conduct and will

then address the Guidelines calculations. 

 In approximately May 2007, an African-American family moved into a rental

home down the street from the defendant’s residence in Joliet. PSR, ¶ 7. Defendant

was bothered by the children “hanging out” on the front porch and referred to them as

“niggers.” PSR, ¶ 7. Defendant routinely threatened that he was going to burn their

house down. See Govt. Version, Exhibit B, page 9. 

On June 17, 2007, at approximately 4 a.m., the defendant used gasoline to set

fire to the residence. PSR, ¶ 8. Specifically, defendant poured gasoline on an area of

the south side of the home and ignited the fire. When defendant returned to his

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residence, he bragged, “I did it, I did it, I set that fucking house on fire.” Govt. Version,

Exhibit B, page 14. Defendant subsequently realized that the fire he set had

extinguished. He returned to the residence, poured more gasoline on a north-facing

exterior wall of the residence and ignited a second fire. PSR, ¶ 8. 

While there, a 14-year-old girl who lived in the home observed the fire and went

outside the residence to investigate. PSR, ¶ 9. The girl saw the defendant holding a

red can near the corner of the house. Id. The defendant fled past the girl and returned

to his home. Id. The girl woke her mother, who called 911, and the family (safely)

evacuated the residence. 

After igniting the second fire, defendant returned home briefly. At gunpoint,

Witness A drove defendant from the residence to another area of Joliet. Govt. Version,

Exhibit B, page 15. Defendant then took numerous actions to destroy evidence from the

arson, including disposing of the gas can, his clothing and cleaning the vehicle in which

he and Witness A rode. PSR, ¶ 10. Defendant further attempted to provide an alibi

for himself by purchasing food with a credit card at a Dunkin Donuts. PSR, ¶ 10 and

Govt. Version, Exhibit B, page 17. 

On June 17, 2007, after defendant fled the area, the Joliet Police Department 

arrested one of defendant’s friends, who was sleeping inside defendant’s garage.

Initially, the friend was charged by criminal complaint with one count of aggravated

arson and one count of residential arson. He was subsequently charged with nine

counts of aggravated and residential arson. Ultimately, the Will County States

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Attorney’s Office dismissed the charges against the friend on March 10, 2008. See Govt.

Version, Exhibits C, D and E. 

II. GUIDELINE CALCULATIONS

The Probation Department found that defendant had a total offense level of 35. 

The government generally agrees with the Probation Officer’s calculation of the

guideline range as set forth below.2

base offense level, 2H1.1(a)(1) and 2A2.1(a)(1) 33

victim/property selected because of race, 3A1.1(a) +3

victim was a vulnerable victim, 3A1.1(b)(1) +2

acceptance of responsibility -2

timely notification of intent to enter a guilty plea -1

Per the terms of the written plea agreement, defendant has reserved the right to object

to the application of each of these Guideline sections. Accordingly, the government has

set forth its positions, as well as the supporting evidence and law, below. 

A. The base offense level is 33, pursuant to Guideline §§ 2H1.1(a)(1)

and 2A2.1(a)(1), because the object of the offense would have

constituted first degree murder. 

The proper base offense level is 33 because the object of the offense would have

constituted first degree murder. Guidelines § 2A2.1, Note 1, provides “first degree

2

As set forth in the plea agreement, defendant has reserved the right to contest

the application of certain sentencing Guidelines. In light of defendant’s position, the

government has reserved the right to take whatever position it deems appropriate at

the time of sentencing with respect to whether defendant has accepted responsibility

within the meaning of Guideline § 3E1.1(a). Without knowing the nature of defendant’s

objections, if any, the government does not object to the proposed reduction for

acceptance of responsibility contemplated by the Probation Officer at this time.

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murder” means conduct that, if committed within the territorial jurisdiction of the

United States, could constitute first degree murder under 18 U.S.C. § 1111. Title 18,

United States Code, Section 1111(a) provides, in relevant part, 

[m]urder is the unlawful killing of a human being with malice aforethought. 

Every murder perpetrated by poison, lying in wait, or any other kind of willful,

deliberate, malicious, and premeditated killing; or committed in the

perpetration of, or attempt to perpetrate, any arson...is murder in the first

degree. 

For the cross-reference to apply, a preponderance of the evidence must show that

defendant intended to cause death when he set the fire. It is entirely appropriate for

the court to rely on circumstantial evidence to make the reasonable inference, by a

preponderance of the evidence, that the defendant intended to cause death. See United

States v. Perez, -- F.3d --, 2010 WL 2652464, at *7 (7th Cir. July 6, 2010) (intent may

be proved by circumstantial evidence); United States v. Are, 590 F.3d 499, 517 (7th Cir.

2009) (at sentencing, government must only present enough evidence allowing

reasonable inferences to constitute a preponderance supporting its position); United

States v. Morrison, 207 F.3d 962, 966 (7th Cir. 2000) (“Crimes may be proved entirely

by circumstantial evidence.”); United States v. White, 00-5759, 2001 WL 1631439, at

*2 (6th Cir. Dec. 18, 2001) (finding that U.S.S.G. § 2A2.1(a)(1) applied because

defendant’s actions in obtaining his gun from the trunk of his car and waiting for

security guards to leave the nightclub were wilful, deliberate, malicious and

premeditated and presumably would have resulted in the murder of the security

guards if the police had not intervened).

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Here, defendant’s actions demonstrate by a preponderance of the evidence that

defendant set the fire with the intent to cause death. As a preliminary matter, the

arson occurred at 4:00 a.m. when Victim B and her family were at home and likely

sleeping thereby making it less likely that they would escape the burning residence.

He also knew that, in the middle of the night, other residents of the neighborhood

would similarly be sleeping making it less likely that someone would observe the fire

and seek emergency assistance. Defendant specifically used a container of gasoline-a

powerful accelerant. Defendant initially splashed the south side of the residence with

gasoline and set it on fire. After returning to his residence, defendant realized that the

fire had extinguished. Defendant’s actions at this point are especially telling as he

returned to the residence a second time. Again, defendant carried a container of

gasoline with him, this time splashed the accelerant on the north side of the residence

and ignited it. Defendant’s actions when he set the residence on fire a second time

made clear that he meant to succeed in his efforts to burn down the residence and

intended to cause the deaths of its inhabitants-whom he presumed to be sleeping.

The Seventh Circuit’s opinion in United States v. Polanco, Nos. 10-3362, 10-

3374, 2012 WL 3711875, at * 3-4, 6 (7th Cir. August 29, 2012), is instructive on this

point. The defendants in Polanco both pled guilty to arson, in violation of Title 18,

United States Code, Section 844(i). The government argued that the attemptedmurder guideline was applicable since the defendant’s objective was to kill someone.

More specifically, the government argued that the cross reference to the attemptedmurder guidelines should apply because the defendants’ intent to kill could be inferred

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from their actions: they used gasoline, a powerful accelerant to set fire to a building

they knew to be occupied and further knew might be occupied by children, and they

certainly knew that fire was very destructive. See Polanco, at 3. Both the probation

officer and court rejected the government’s position. On appeal, the Seventh Circuit

noted as follows:

...and [the district court’s] only mistake was one that benefitted defendants: not

applying the attempted murder cross-reference. The judge said that there was

no evidence of an intent to kill, but we agree with the government that the

defendants’ intent to kill could be inferred from their actions, see United States

v. Peugh, 675 F.3d 736, 741 (7th Cir. 2012); United States v. Perez, 612 F.3d 879,

887 (7th Cir. 2010), particularly considering that a preponderance of the evidence

is normally sufficient at sentencing, see United States v. Mitchell, 635 F.3d 990,

992-93 (7th Cir. 2011). 

Based on the evidence described above, and the Seventh Circuit’s opinion in

Polanco, the only reasonable inference here is that defendant intended to kill Victim

B and her children when he twice set fire to their residence which he correctly believed 

was occupied. Further, Witness A, testified that defendant repeatedly threatened to

burn the house down before making good on this threats. Defendant’s actions were

wilful, deliberate, malicious and premeditated, and they may have resulted in the

murder of the occupants of the residence if one of the children had not been awake,

notified her mother of the flames, and thwarted defendant’s continued efforts to splash

gasoline on the residence. Defendant only stopped when he realized he had been

observed.

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For these reasons, defendant’s base offense level is 33, pursuant to Guideline §

2A2.1(a)(1), because the object of the offense would have constituted first degree

murder.

B. Pursuant to Guideline § 3A1.1(a), the offense level is increased 3

levels because defendant selected the property for the offense

because it was occupied by an African American family. 

Defendant, by his own admission of guilt, and as set forth on pages two and

three of the plea agreement, was upset when, in May 2007, an African American family

moved into his neighborhood. Specifically, the family moved several houses down from

defendant on the same street on which he resided. As defendant admitted, he set the

fire at the residence because African Americans were renting the residence, and

defendant intended to interfere with their continued ability to rent the residence and

to intimidate the owner of the residence from continuing to rent to African Americans.

Based on defendant’s guilty plea alone to this offense, this enhancement applies. 

C. The offense level is increased 2 levels because the defendant

knew that the victims of the offense were vulnerable, namely

minor children.

Defendant was well aware of the family, including the children, who resided in

the residence where he set the fire. Indeed, he was disturbed by the family having

merely moved into the residence less than a month earlier. According to the testimony

of Witness A, on the night of the arson, defendant stated “that he should go burn down

the house that the African American family was living in and referred to them as

niggers.” Witness A further testified that “I later read in the newspaper that nine

children were in the house when Brian set fire to it. This made me sick to my stomach

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but Brian did not seem to care. He showed no remorse about the children being in the

house,” Govt. Version, Exhibit B, pages 21-22. Indeed, defendant was well aware that

children were in the residence at the time of the arson. 

Guidelines § 3A1.1(b)(1) provides for a two-level increase if the defendant knew

or should have known that a victim of the offense was a vulnerable victim. Per

Application Note 2, a “vulnerable victim” is a person (A) who is a victim of the offense

of conviction; and (B) who is unusually vulnerable due to age, physical or mental

condition, or who is otherwise particularly susceptible to the criminal conduct

(emphasis added). As previously stated, there were eight children inside the residence

at the time of the arson. According to the report from the Joliet Police Department, see

Govt. Version, Exhibit G, the children’s ages ranged from four to fourteen years of age.

The victims’ ages alone are sufficient to establish the application of this enhancement.

See United States v. Sims, 329 F.3d 937, 944 (7th Cir. 2003)(No other factor need

accompany age so long as the victim’s vulnerability is related to the victim’s age); See,

e.g., United States v. Pospisil, 186 F.3d 1023, 1030 (8th Cir.1999) (affirming application

of § 3A1.1 (b)(1) in cross burning case where victims – a mother and her children –

were new in town and children were young in age). 

In addition to being vulnerable because of their age, the children and the adult

inside were vulnerable because of their physical condition, namely, they were asleep

at the time of the arson, which occurred at 4:00 in the morning. Given the time of day

the defendant lit the fires, it was far less likely that the fires would be observed by

someone inside or outside of the residence and that the occupants would safely escape. 

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The age of the victims, coupled with the fact that they were asleep, warrant the

applicability of this enhancement.

D. Summary

Based on the calculations of the Probation Officer, defendant has a total

adjusted offense level of no less than 35. Defendant’s criminal history is category III

because of multiple prior convictions, including a 1999 Hate Crime conviction. Based

upon a total offense level of 35 and a criminal history category of III, the guideline

imprisonment range is 210 months to 262 months. However, as the statutorily

authorized maximum sentence of ten years is less than the minimum of the applicable

guideline range, the guideline term of imprisonment is 120 months. See USSG §

5G1.1(a).2

III. RESTITUTION

As set forth in the plea agreement and PSR, restitution in an amount to be

determined by the Court at the time of sentencing shall be ordered. The government

respectfully requests this Court to order restitution in the amount of no less than

$5,951.05 to be paid to various individuals and/or entities.3

2

Defendant’s guideline range does not change even if the Court were to find that

defendant is not entitled to a reduction in offense level based on acceptance of

responsibility.

3

The government is currently awaiting additional receipts from victims of the

offense relating to costs incurred stemming from the arson. Upon receipt, the

government will supplement this filing to reflect the additional loss directly related to

the arson in order to be included in the order of restitution.

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The Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, requires the

sentencing court, “in the case of an offense resulting in damage to or loss or destruction

of property of a victim of the offense,” to order the defendant to return the property to

the owner or, if that is infeasible, to pay the owner an amount equal to the loss of the

value of the property.” The MVRA’s overriding purpose is “to compensate victims for

their losses.” Here, the landlord of the rental property was required to pay a $500

deductible before Country Casualty, his insurance company, would pay for the damage,

and necessary repairs, to the residence following the arson. See Exhibit B. Country

Casualty subsequently paid $ $5,451.05 to repair the physical damage to the residence

following the arson. See Exhibit B. Defendant is, of course, responsible to pay

restitution for the direct costs stemming from his criminal conduct.

Further,Victim B is entitled to restitution for the moving costs she incurred as

a result of having to uproot herself and her family to a safer environment. Indeed,

Victim B left the Joliet, Illinois area immediately following the arson and relocated her

family. Such expenses are included in the restitution order as they constitute a form

of damage to the property and were a direct result of defendant’s crime. See United

States v. Robers, 698 F.3d 937, 955 (7th Cir. 2011) (Loss in value of the real estate and

the various line-item expenses incurred by mortgage fraud victims while attempting

to convert the collateral back to cash were directly caused by defendant’s fraud and

constituted recoverable damages to their property under MVRA). See United States

v. Scott, 405 F.3d 615, 619 (7th Cir. 2005) (In prosecution for bank fraud,

banks/victims’ audit expenses, incurred in effort to determine how much money had

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been stolen from them, were awardable as restitution under MVRA; expenses

constituted form of damage to banks’ property); see also United States v. Havens, 424

F.3d 535, 539 (7th Cir. 2005) (Defendant convicted of identity theft was required to pay

restitution to victim whose identifying information she stole for diminution in value

of victim’s property caused by defendant’s conduct, and for time victim spent dealing

with banks and credit agencies in effort to correct her credit history and repair damage

to her credit rating). United States v. Menza, 137 F.3d 533, 539 (7th Cir. 1998) (cleanup costs required by the defendants’ conduct are recoverable). The relocation expenses

incurred by Victim B were directly caused by defendant’s crime and constitute

recoverable damages to her property. 

IV. 3553(a) FACTORS JUSTIFY A VERY SIGNIFICANT SENTENCE. 

A. The Nature and Circumstances of the Offense

This was an exceptionally despicable crime motivated by hate. The victims of the

arson did nothing, but move into a new residence in Joliet. Unbeknownst to the

victims, several houses down lived a white supremacist who never knew the victims

but hated them because they were African American. But for a child inside the

residence being awake at the time of the arson, the consequences of defendant’s actions

could have been far worse, indeed, deadly. Moudry’s actions were hateful and

potentially lethal. For any person–let alone young children- to be exposed to such

violence and hatred, simply because of the color of their skin, is horribly tragic and

disturbing. 

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Fortunately, the occupants of the residence–one adult and eight childrenescaped physically unharmed. Undoubtedly, they will forever be impacted by the

memory of being woken up in the middle of the night to the fear and panic of having

to escape a burning residence. Adding to this horrifying ordeal is the knowledge that

the fire was not an accident, but was deliberately set by defendant, who intended to do

his victims harm. One can only imagine the psychological terror inflicted on the victims

as a result of defendant’s senseless crime. It is impossible to sufficiently understand

the fear that went through Victim B, the sole adult present and responsible for waking

the children and safely removing them from the burning residence. It is also

impossible to imagine the thoughts that go through a victim’s mind when they re-live

the events which occurred on June 17, 2007 and think about what could have

happened. 

B. History and Characteristics of Defendant

Defendant has long espoused and expressed white supremacist views. This is

well-documented and illustrated by photographs of defendant’s garage and tattoos,

attached as Exhibits A and C. Defendant has also demonstrated a long history of

engaging in violent and threatening conduct directed towards individuals of other

races. For example, in 1999, defendant was convicted of a hate crime in the Circuit

Court of Will County. As set forth in the PSR, officers responded to a Burger King. 

The victims of the offense were in line at the food counter when passengers in a vehicle

at the drive-up window began yelling racial slurs at the victims and told the victims

to meet them in front of the restaurant. The vehicle subsequently pulled in front of the

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restaurant’s entrance and a passenger in the vehicle, later determined to be the

defendant, produced what the victims and witnesses believed to be a gun.4

 Defendant

and the other passengers yelled racial slurs at the victims and threatened them. The

victims feared for their lives if they left the restaurant. 

Defendant’s encounters with the criminal justice system related to his attacks

(oral and physical, as well as the threat of physical assaults) continued through the

years. More recently, in 2011, defendant pled guilty to disorderly conduct. This

conviction stems from officers responding to a call that defendant was brandishing a

firearm5

 and yelling racial slurs at passing individuals. When officers arrived at the

scene, defendant entered his home, shut the windows and doors, and continued to yell

“White Power” and other racial slurs. 

Defendant’s actions demonstrate a long history of terrorizing individuals, and

placing them in fear of their lives, simply based on their race. Further, through the

crimes he has committed, defendant has demonstrated an unwillingness to adhere his

conduct to the laws of society. 

C. The Need for the Sentence Imposed

The sentence imposed needs to be significant to reflect the seriousness of this

crime, provide just punishment for it, and to deter defendant from committing other

4

Defendant reportedly told police officers that he was the passenger who

exhibited the weapon, which was a paint brush handle painted with white supremacist

markings.

5

Officers subsequently recovered a pellet gun.

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crimes. As noted above, defendant has long engaged in acts in which he threatens

violence or commits acts of violence against individuals based on their race. Defendant

has repeatedly, for a span of more than a decade, terrorized and victimized innocent

people. There are real consequences to the violence and threats perpetrated by the

defendant–both for his victims and for society. Defendant’s sentence should reflect

that.

This Court should also protect the public from further crimes of defendant. As

already noted, defendant has demonstrated a pattern of acting in a violent and

aggressive manner towards individuals because their race differs from the defendant. 

Despite defendant’s encounters with law enforcement, he has been undeterred from

this conduct. The Court’s sentence must send a clear message to defendant that such

violence is unacceptable and will not be tolerated. A significant sentence of

incarceration will also protect individuals, like Victims A and B, from the defendant’s

violent conduct. Indeed, based on defendant’s pattern of conduct, it appears that a

significant period of incarceration is the best way to prevent defendant from further

acts of violence. 

A ten-year sentence, the maximum possible sentence, will also act as general

deterrence, sending a message to others that if you intimidate and threaten others

based on their race, and interfere with their housing rights, then you forfeit your right

to live in a free society. 

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CONCLUSION

For the foregoing reasons, the government respectfully requests that this Court 

impose the maximum possible penalty–a sentence of 10 years’ imprisonment. 

Respectfully submitted,

GARY S. SHAPIRO

United States Attorney

By: s/ Nancy DePodesta 

NANCY DEPODESTA

STEVEN J. DOLLEAR

Assistant United States Attorneys

219 South Dearborn Street

Chicago, Illinois 60604

(312) 353-4224

Dated: April 17, 2013

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