1The Honorable John R. Tunheim, United States District Judge for the

District of Minnesota, sitting by designation.

2The Honorable John F. Forster, Jr., United States Magistrate Judge for the

Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

____________

No. 99-1443

____________

United States of America, *

 *

Plaintiff-Appellee, *

 * Appeal from the United States

v. * District Court for the 

 * Eastern District of Arkansas

J. Fred Hart, Jr., *

 *

Defendant-Appellant. *

 ___________

Submitted: December 16, 1999

 Filed: May 1, 2000

 ____________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1

District Judge.

 ____________

McMILLIAN, Circuit Judge.

J. Fred Hart, Jr. appeals from a final judgment entered in the United States

District Court2 for the Eastern District of Arkansas upon a jury verdict finding him

guilty on two misdemeanor counts under 18 U.S.C. § 248, the Freedom of Access to
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Clinic Entrances Act ("FACE Act"). See United States v. Hart, No. 4:98CR00132-

001 (E.D. Ark. Feb. 11, 1999) (judgment). For reversal, Hart argues that the district

court erred in denying his motion for judgment of acquittal on the grounds that

(1) a Ryder truck does not in and of itself constitute a threat of force under the FACE

Act, (2) his conduct was specifically protected by the First Amendment, and (3) the

FACE Act is an improper expansion of federal jurisdiction in violation of the

Commerce Clause. For the reasons stated below, we affirm.

Jurisdiction

Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.

Jurisdiction is proper in this court based upon 28 U.S.C. §1291. The notice of appeal

was timely filed pursuant to Fed. R. App. P. 4(b). 

Background

Hart is an attorney who practices in Little Rock, Arkansas. He is also a selfdeclared anti-abortion activist who regularly engages in peaceful protests outside

abortion clinics. On September 24, 1997, he rented two Ryder trucks in Little Rock,

under his own name. On September 25, 1997, the same trucks were found in the

driveways of two Little Rock abortion clinics, the Women's Community Health Center

and the Little Rock Family Planning Services ("the clinics"). The placement of the

trucks at the clinics coincided with a visit from President Clinton to a Little Rock high

school. Each truck was unattended and carried no indication as to its purpose for being

there. Each truck was parked in the entrance driveway rather than an ordinary parking

area. 

On the morning of September 25, 1997, employees arriving at the clinics were

alarmed by the presence of the trucks. Reminded of the catastrophic 1995 bombing of

a federal office building in Oklahoma City, Oklahoma, involving a Ryder truck,
3Count I of the indictment alleged that, on or about September 25, 1997, Hart

did by threat of force, intentionally intimidate and interfere, and

attempt to intimidate and interfere, with persons because they were

obtaining reproductive health services, and with persons because they

were providing reproductive health services, and in order to intimidate

any persons from obtaining and providing reproductive health services,

by parking a Ryder truck in the parking area at the Little Rock Family

Planning Services.

Count II alleged the same with respect to the Women's Community Health Center.

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employees of the clinics feared that the trucks contained bombs. They immediately left

the buildings and notified the police. At each clinic, the area was evacuated, and a

bomb squad was called in to investigate. The authorities determined, however, that the

trucks contained no explosive materials.

The rental and placement of the Ryder trucks was tracked to Hart. A grand jury

subsequently indicted him on two counts of violating the FACE Act.3 Hart filed a

motion to dismiss his indictment, arguing that the mere parking of the trucks could not

support a finding of actual intimidation and challenging the constitutionality of the

FACE Act. The district court denied his motion. Hart then pleaded not guilty to both

counts. 

At trial, the government presented the testimony of several witnesses, including

employees from both clinics and neighboring establishments, all of whom feared that

the Ryder trucks contained bombs, given the way in which they had been parked at the

clinics. Several police officers also testified that they believed the trucks presented "a

high threat level" and thus evacuated the area surrounding each clinic. In addition, the

government presented a stipulation of expected testimony from Hart's father. Hart's
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father believed that Hart parked the Ryder trucks in the clinic driveways knowing that

they would "cause some turmoil." Based on conversations with his son, Hart's father

concluded that Hart acted with the intent that "if people believed that there was a bomb

on one or more of those Ryder trucks, that it would have been worth it in order to save

at least the life of one baby." 

Hart presented the testimony of Carrie Land, a Special Agent for the FBI.

Through her testimony, Hart established that, shortly after his indictment, he observed

four Ryder trucks parked outside the offices of the FBI in Little Rock. Hart notified

Ms. Land that Ryder trucks were parked outside her building, but she did not respond

with alarm. In fact, she testified that she did not investigate the trucks until prompted

by Hart's visit to the office, even though she had previously seen the trucks. She stated

that she dismissed the presence of the Ryder trucks because she knew that other

occupants of the building were in the process of moving.

At the close of the government's case, Hart filed a motion for judgment of

acquittal, again arguing that the government's case charged nothing more than the

parking of a Ryder truck at each clinic, which, according to Hart, could not form the

basis for a conviction. The district court denied the motion. On November 2, 1998,

the jury returned a verdict of guilty on both counts. Hart was sentenced to four years

of probation, the first twelve months of which to be served in home detention, 200

hours of community service, and a special assessment of $50.00. Hart timely appealed.

Standard of Review

In reviewing a denial of a motion for judgment of acquittal for insufficiency of

the evidence, we draw all reasonable inferences in favor of the government. To prevail,

Hart must show that the evidence presented by the government was not sufficient to

permit a reasonable jury to find him guilty beyond a reasonable doubt. See United
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States v. James, 172 F.3d 588, 591 (8th Cir. 1999); United States v. Vig, 167 F.3d 443,

445 (8th Cir.), cert. denied, 120 S. Ct. 146 (1999). 

Discussion

Congress enacted the FACE Act in 1994 in an effort to combat the continuing

violence against, and forcible interference with, abortion clinics, those providing or

receiving abortion-related services, and their families. See H.R. REP. NO. 103-306, at

5-7 (1993), reprinted in 1994 U.S.C.C.A.N. 699, 701-03. To this end, the FACE Act

provides criminal and civil penalties against anyone who:

by force or threat of force or by physical obstruction, intentionally injures,

intimidates or interferes with or attempts to injure, intimidate or interfere

with any person because that person is or has been, or in order to

intimidate such person or any other person or any class of persons from,

obtaining or providing reproductive health services.

18 U.S.C. § 248(a)(1). 

In United States v. Dinwiddie, 76 F.3d 913 (8th Cir.), cert. denied, 519 U.S.

1043 (1996), this circuit interpreted the "threat of force" language of the FACE Act.

This court instructed that, because the First Amendment forbids the government from

prohibiting speech that is merely forceful or aggressive, conduct constitutes a "threat

of force" in violation of the FACE Act only if it constitutes a "true threat." Id. at 925

(citing Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam)); see also United

States v. Brock, 863 F. Supp. 851, 858 n.7 (E.D. Wis. 1994), aff'd sub nom. United

States v. Soderna, 82 F.3d 1370 (7th Cir.), cert. denied, 519 U.S. 1006 (1996). To

determine whether a true threat exists, a court must analyze the alleged threat in light

of its "entire factual context" and determine "whether the recipient of the alleged threat

could reasonably conclude that it expresses a determination or intent to injure presently
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or in the future." United States v. Dinwiddie, 76 F.3d at 925 (internal quotations

omitted). This court also identified several factors to be taken into consideration when

making this determination: how the recipient and other listeners reacted to the alleged

threat, whether the threat was conditional, whether it was communicated directly to its

victim, whether the maker of the threat had made similar statements to the victim on

other occasions, and whether the victim had reason to believe that the maker of the

threat had a propensity to engage in violence. See id. 

The defendant in United States v. Dinwiddie, who for many years had protested

outside the Planned Parenthood of Greater Kansas City ("Planned Parenthood") clinic,

was convicted under the FACE Act for "obstructing, using physical force against, and

threatening to use physical force against a number of Planned Parenthood's patients and

members of its staff." Id. at 917. Specifically, the defendant, on more than fifty

occasions, threatened a clinic doctor, often through a bullhorn, by stating, "[r]emember

Doctor Gunn [a physician who was killed by an opponent of abortion] . . . . This could

happen to you. . . . He is not in the world anymore. . . . Whoever sheds man's blood,

by man his blood shall be shed." Id. In response to these statements, the doctor began

wearing a bullet-proof vest to the clinic. This court held that the defendant's conduct

violated the statute. This court reasoned that, although the defendant did not

specifically threaten to injure the doctor, the manner and context in which the

statements were made and the reaction they elicited supported the conclusion that the

statements constituted "threats of force" which were intended to intimidate, and did

intimidate, the doctor. See id. at 925-26. 

Hart argues that he did not violate the FACE Act because merely parking a

Ryder truck at the entrance of an abortion clinic cannot in and of itself constitute a

"threat of force." Specifically, he argues that, because the trucks themselves were not

inherently dangerous and they were unaccompanied by threats of death or physical

injury, their placement cannot serve as the basis for a conviction under the statute. Hart

explains that Ryder trucks are commonplace vehicles rarely associated with danger or

intimidation and that clinic staff and the police deemed the trucks threatening only
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because they were reminded of the Ryder truck involved in the Oklahoma City

bombing. However, according to Hart, individual cultural inferences and speculation

regarding the meaning of the placement of the Ryder trucks and their association with

the Oklahoma City bombing do not suffice to render the trucks a "threat of force" under

the FACE Act. See Brief of Appellant for 15. As further support for his argument,

Hart points to the incident that occurred after his indictment, in which he notified FBI

personnel that Ryder trucks were parked outside their headquarters, yet, they did not

react with alarm. Hart contends that his conviction was based upon the jury's

speculation as to the meaning of the trucks, which is not a valid basis for a criminal

conviction. See id. at 17. We disagree. 

Consistent with our decision in United States v. Dinwiddie, our inquiry focuses

on whether the jury reasonably could have believed that parking the Ryder trucks in the

clinic driveways, in light of the surrounding circumstances, constituted a "true threat"

of force. Given the context and manner in which Hart placed the Ryder trucks and the

reaction of clinic staff and patients and others, we conclude that it was reasonable for

the jury to find that Hart's conduct constituted a "true threat" of force. 

First, Hart targeted abortion clinics, which are often sites of protests and

violence. In particular, Hart regularly protested outside the two clinics at which he

parked the Ryder trucks. He also placed the trucks in the driveways, near the

entrances, rather than in the parking lot. The trucks actually blocked the entrance to

each clinic building. In fact, an employee at one clinic testified that the truck had been

parked "as close to [the clinic] as it could possibly be." Furthermore, the placement of

the trucks at the clinics coincided with a visit to Little Rock from President Clinton,

whose presence in the area further heightened concerns about potential violence. It

was reasonable for the jury to conclude that Hart, by placing a Ryder truck directly in

the entranceway of each clinic, sought to take advantage of the heightened level of

security concerns in the Little Rock area to create a threat of violence on that particular

day. Moreover, Hart offered no legitimate reason for leaving the trucks early that

morning, and he provided no notice or explanation for his actions. These
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circumstances, coupled with the similarity to the well-known events of the Oklahoma

City bombing, were reasonably interpreted by clinic staff and police officers as a threat

to injure. Furthermore, the reaction of clinic staff indicates that they did in fact

perceive the Ryder trucks as a threat of force. Several clinic employees testified that

they believed that the trucks contained bombs, and they immediately contacted the

police, who evacuated the clinics and nearby homes and businesses and called in bomb

squads. 

Moreover, the jury's finding is not inconsistent with the fact that the Ryder trucks

at the Little Rock FBI offices did not raise similar fears. That situation illustrates that

it was not the Ryder trucks themselves that presented the threat at the clinics, but

rather, it was the manner in which they were parked and the absence of any legitimate

reason for their presence. Unlike the staff at the clinics, the FBI agents had no reason

to fear the trucks parked outside their offices because those trucks were parked in the

parking lot, not blocking an entranceway, and a legitimate explanation for their

presence existed in that it was known that other occupants of the building were moving.

In addition, the government presented the stipulated testimony of Hart's father, who

believed that Hart sought, by his actions, to frighten clinic patients and staff and thereby

actually interfere with the provision of abortion services. In sum, we hold that the

district court did not err in denying Hart's motion for judgment of acquittal on the basis

of insufficiency of the evidence.

 

In the alternative, Hart argues that the FACE Act is vague and overbroad as

applied to him because it does not put ordinary persons on notice that inherently nonthreatening conduct could subject them to criminal prosecution. These arguments were

rejected in United States v. Dinwiddie, 76 F.3d at 924, and fail here, as well. As

previously discussed, Hart's conviction is not based on the mere presence of a Ryder

truck at each clinic. Rather, his conduct violated the statute because of the particular

manner and context in which he parked the trucks. See United States v. Lee, 6 F.3d

1297, 1304 (8th Cir. 1993) (recognizing that an act of expression can constitute a threat
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if "intended to threaten acts of violence . . . or intended to cause [individuals] . . . to

reasonably fear the use of imminent force or violence"). Hart reasonably knew that he

was creating the impression that bombs might detonate at the clinics.

Hart's remaining arguments present facial challenges to the constitutionality of

the FACE Act. First, Hart claims that his indictment violated the Free Speech Clause

of the First Amendment. Briefly, Hart argues that, because the FACE Act targets antiabortion activists, it imposes an impermissible burden on the exercise of speech based

on its content. Hart asserts, in the alternative, that even if the FACE ACT does not

attach a content-based restriction on speech, the placement of the Ryder trucks at the

entrance of each abortion clinic constituted expressive conduct, which is protected by

the First Amendment, even where it is intimidating. See Brief for Appellant at 19

(citing NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (protecting political

expression, even where it has the effect of intimidation); Simon & Schuster, Inc. v.

Members of New York State Crime Victims Bd., 502 U.S. 105 (1991) (protecting

offensive or emotionally unsettling speech)). We disagree. 

In United States v. Dinwiddie, 76 F.3d 923, this court held that the FACE Act

does not impose content-based restrictions on speech; rather, it prohibits the

obstruction of reproductive health services without regard to the issue motivating the

speech. That the FACE Act disproportionately impacts anti-abortion protestors does

not transform its prohibitions into content-based restrictions. Id.;see also United States

v. Weslin, 156 F.3d 292, 297 (2d Cir. 1998) (per curiam), cert. denied, 525 U.S. 1071

(1999). Furthermore, although the FACE Act prohibits "threats of force," to which an

expressive element may attach and warrant some First Amendment protection, the

government may limit such expression subject to intermediate scrutiny. See United

States v. Dinwiddie, 76 F.3d at 923-24. With respect to the FACE Act, this court has

already held that the government has a significant interest in protecting those seeking

reproductive health services and in ensuring the availability of reproductive health

services, and that the government's interest is not related to restricting free speech. See
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id. at 924. The FACE Act is narrowly tailored because it imposes criminal liability for

only three types of activities: uses of force, threats of force, and physical obstructions.

The FACE Act survives Hart's First Amendment challenge. 

Finally, Hart argues that his conviction should be vacated because Congress

exceeded its authority under the Commerce Clause in passing the FACE Act.

However, as Hart concedes, this court upheld the FACE Act as a valid exercise of

Congressional power to regulate interstate commerce. See id. at 920 (holding that the

conduct prohibited by the FACE Act substantially affected interstate commerce). Thus,

Hart's Commerce Clause challenge is without merit. 

Conclusion

For the foregoing reasons, the judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.