Œ Sitting by designation from the United States District Court for

the Northern District of Indiana. 

ŒŒ After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus, the appeal is

submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1922

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MATTHEW HALE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 011—James T. MoodyŒ, Judge.

____________

SUBMITTED MARCH 28, 2006ŒŒ—DECIDED MAY 30, 2006

____________

Before POSNER, EASTERBROOK, and EVANS, Circuit

Judges.

PER CURIAM. Matthew Hale was convicted after a

jury trial on two counts of obstructing justice, 18 U.S.C.

§ 1503, and one count of soliciting a crime of violence, id.

§ 373, in connection with his resistance to a judgment
2 No. 05-1922

entered against his white supremacist organization by

United States District Judge Joan Humphrey Lefkow and

his involvement in a plot to have the judge murdered.

Hale was sentenced to a total of 480 months’ imprisonment.

I.

Hale was the “Pontifex Maximus” of a white supremacist

organization formerly known as the World Church of the

Creator (“World Church”). A law school graduate, Hale was

unable to procure the character and fitness certification

necessary for admission to the state bar of Illinois. After he

obtained no relief through the administrative appeals

process, and after both the Supreme Court of Illinois and

the Supreme Court of the United States denied review,

Hale unsuccessfully brought constitutional challenges in

federal court. See Hale v. Comm. on Character & Fitness,

335 F.3d 678 (7th Cir. 2003). He later sought, and was

denied, bar admission in Iowa as well.

In May 2000 the World Church was sued for trademark

infringement by the TE-TA-MA Truth Foundation—Family

of URI, Inc. (“the Foundation”), a religious organization

that operates under the name “Church of the Creator.” Both

parties moved for summary judgment, which Judge Lefkow

granted in favor of the World Church. On appeal, however,

we reversed and remanded with instructions to enter

judgment in favor of the Foundation. TE-TA-MA Truth

Foundation—Family of URI, Inc. v. World Church of the

Creator, 297 F.3d 662 (7th Cir. 2002). Accordingly,

on November 19, 2002, Judge Lefkow entered a detailed

order requiring the World Church to stop using variations of the trademarked name “Church of the Creator,” to

turn over books and other materials bearing the name

or obliterate any infringing mark from them, and relinquish

custody of the domain names of the World Church’s

websites to the Foundation. The Foundation soon returned
No. 05-1922 3

to court seeking enforcement of the order after Hale

publicly stated that he would not comply. The court granted

the Foundation’s motion and ordered Hale to show cause

why he should not be held in contempt.

By this time Hale was no stranger to law enforcement

authorities; he had been under FBI surveillance since

before the trademark suit began. In July 1999 a follower,

Benjamin Smith, went on a shooting rampage that left

two persons dead and nine others wounded. Days after Hale

had publicly announced he was denied an Illinois

law license, Smith traveled throughout Illinois and Indiana

targeting black, Asian, and Jewish victims before committing suicide. Hale gave a eulogy at Smith’s memorial

service, a recording of which was entered into evidence at

his trial. Hale told his followers that “brother Ben Smith

was a very good man” and praised Smith’s willingness to

“take action for his people, not to sit in the easy chair and

allow life to go by but to go out into the world and spread

our sacred message.” Responding to criticism that he had

not condemned Smith’s actions, Hale said:

[I]t’s not the policy of the church to commit crimes but

when you are causing the destruction of the white race,

when you FBI, politicians, media, when you are sending

the niggers into our neighborhoods, when you are

letting them attack white people by the bushel, when

you are promoting the destruction of our white people

left and right, do not, do not be surprised when a white

man of the character and honor of Ben Smith stands up

and fights back in the way he did. Do not be surprised

when there are white men who say enough is enough,

who see our white people be victimized in the streets,

who see white women afraid to walk down the street,

and who say, enough is enough. I say unto you, my

brothers and sisters, the future will see more, more Ben

Smiths, not because of what we’ve done, not because

we’re violent people but because, when you kick some-
4 No. 05-1922

one around, when you persecute people, when you

oppress people, people will explode. And they wonder

why, once again, we will not condemn Ben Smith. We

cannot condemn a man for doing what he feels in his

heart is right whether it’s outside the tactics of the

church or not.

Afterward the FBI began investigating Hale, and a

cooperating witness, Tony Evola, infiltrated the World

Church. At his very first World Church meeting in March

2000, Evola met Hale and apparently won his trust when he

fended off a protestor. At a meeting the following month,

Hale asked Evola to be his “head of security” because the

previous occupier of the position, Ken Dippold, had betrayed

him by cooperating in a civil case brought against the World

Church seeking damages for the victims of Benjamin

Smith’s shooting rampage. As head of security, Evola’s

duties included arranging Hale’s travel and standing by his

side during public appearances. Evola was also in charge of

the White Berets, the World Church’s “elite” fighting force.

During his time in Hale’s employ, Evola recorded a number

of conversations that were ultimately introduced into

evidence at Hale’s trial. The following discussion of the

facts is gleaned primarily from those recordings and from

electronic exchanges between Hale and Evola.

In a conversation with Evola and another follower

on June 17, 2000, Hale discussed the upcoming “blitz of

literature” he was organizing to commemorate the one-year

anniversary of Benjamin Smith’s death in the hopes of

making “big news.” Hale recounted Smith’s shooting spree,

joking that Smith’s “aim got better as he went along.” Hale

laughed while describing in detail the first four shootings.

He then commented that Smith “was a good man” and

stated: “I always stand by our comrades. If people are gonna

fight with me, I’m gonna stand with them.” In a conversation on June 23, Hale repeated for Evola and two other

followers what he had said to Benjamin Smith upon
No. 05-1922 5

meeting him: “[W]e can accomplish a lot more peacefully

and legally, you know, straddling the system, one foot on

the inside, one foot on the outside . . . . We’re legal. We’re

peaceful. We’re non-violent but we, you know, try to

undermine the system every chance we can, you know.”

Hale went on to say that he wished Smith “hadn’t done it”

but that “he set out to make a point and he did.” Smith, he

explained, “made us a household name” and for that reason,

Hale continued, he would “always remember him and

respect him and appreciate him.” Hale also lamented that

it was becoming more difficult to pursue his agenda peacefully and lawfully. He remarked: “[I]f I don’t get my law

license, I’m not going to be able to in good faith tell people

to obey the law like I’ve been . . . . I’m not saying that I

would . . . resort to illegal acts. I’m not saying that. But I

am saying that I think there’s going to be a different policy

in some ways.” When one of his followers responded that

“there’s gonna be killing and there’s gonna be shootin,” Hale

said, “You know and I agree with you.”

In a conversation on June 29, 2000, shortly after the

trademark suit had commenced, Hale said of Benjamin

Smith’s rampage: “[I]t must have been fun while he was

doing it.” Hale also stated that it was “personally still [his]

intention” to follow the law because he was being “watched

all the time,” but he would not “urge people to follow

the law” as it was “up to them” to decide.

The following day, Hale left a message on his “hotline” (a

voice mailbox that followers could call to hear recorded

messages) announcing that the Supreme Court of the

United States had declined to hear his challenge to the

denial of his Illinois law license. Hale stated that he

could “no longer in good faith and good conscience urge,

recommend, or instruct my adherents and supporters

in general to obey the laws of this land.” Hale declared

the United States government “illegitimate” and stated that

he and his followers “are free according to our own con-
6 No. 05-1922

science to take whatever actions we deem necessary

to resist this tyranny.” He said that “whatever blood is

spilled will be on the hands of those who so severely

wronged us today” and urged his followers to “do what

is right today to fight for our white race to secure the

existence of our people for all time on this planet.”

On December 3, 2000, Hale spoke to Evola and another

follower about the civil lawsuit against the World

Church arising from the Smith shootings. Hale suspected

that his former security chief, Ken Dippold—whom he

dubbed “a big fat coward”—would testify that Hale had

orchestrated Smith’s actions. Evola asked Hale, “What

are we gonna do about this . . . traitor?” Hale responded,

“[A]ll we can do at this point is be legal and peaceful and

follow the rules.” But he added: “[I]f I could snap my fingers

and the bastard would drop dead hideously right now, I’d do

it in a heartbeat, you know, but unfortunately, it’s not that

easy.” Later Hale remarked: “If somebody came to me and

said . . . I have the means to make sure that Polar Bear

doesn’t continue with this bullshit and I’d say hey, I don’t

want to know about it . . . I have no legal obligation to like

tell Polar Bear somebody doesn’t like him.”

On December 17, 2000, Evola and Hale spoke in an

Internet chatroom. Evola asked Hale if he had considered

Evola’s prior disclosure that he had a cousin who could take

care of “the rat.” Hale replied, “Of course, it is very important that I be able to say truthfully that I have

never advocated anything illegal,” and later he elaborated: “I know that it should be legal to dispose of big rats.

So I wouldn’t mind if something happens to big rats . . . .

But I would never want to involve myself in such things.”

On January 11, 2001, Evola recorded a conversation

with Hale at Hale’s father’s home (the headquarters of the

World Church). Evola told Hale that “everything’s in

motion” and that he needed a picture or an address to
No. 05-1922 7

give to his cousin’s “friends.” Hale responded, “I think it

would be best, you know, I think it would be best that

nothing happened.” Evola protested, and Hale explained

that Dippold had “already been deposed” so killing him

would not help their litigation position and would only draw

suspicion. Hale added that he was close to getting a law

license in Iowa and did not want to jeopardize his chances

with negative publicity because the World Church would

“automatically” be blamed. Evola persisted but Hale was

firm: “I’m gonna have to say no to this and I have to say no

for a number of reasons.” Evola offered to provide Hale with

an alibi for the murder, and Hale declined because “what I

would be doing or what I would be authorizing would be

grounds for disbarment if I had a license and I just hate to

go [sic] that.” Evola told Hale that “bad things happen to

people all the time” and implored that “all I need is an

address.” At that point Hale stated he already had mailed

the address to Evola “just for your information only.” Hale

expressed concern that “it might hurt us” and reiterated: “I

just want it clear. I’ve never given my authorization for

this.” Again Evola said he just needed the address, and

Hale replied it had been sent “just because you happen to

have other addresses.” Evola asked questions about the

layout of Dippold’s apartment, and Hale answered that he

couldn’t “go into” anything like that because “I can’t further

this.” After more talk about his upcoming hearing before

representatives of the Iowa bar, Hale said they were

“speaking in theoretical terms” and he didn’t “want to know

about these things.” The men discussed other subjects until

Evola returned to the subject of Dippold. Hale stated, “I just

want to say that I can’t approve,” and later he was emphatic: “I don’t want to ever hear about it again.” The next

day Hale sent an email to Evola about the “idea” and

stated, “I must veto it.” Hale wrote, “You are very persuasive and obviously I think extremely well of you for your

idea,” but he concluded, “I must instruct you not to proceed.”
8 No. 05-1922

In another online chat in August 2001, Hale told Evola

that a church member, Dan Hassett, was attempting to

remove Hale from his position as Pontifex Maximus. Evola

wrote, “Maybe he has to go?” but Hale did not respond. In

November, Hale forwarded to Evola an abrasive email

received from former church member Pat Langballe and

asked Evola to “persuade him to never say such sick crap to

me again.” In December, Evola offered to do to Langballe

what “we were gonna do to Dippold,” but Hale declined,

suggesting instead that Evola should just scare Langballe

into treating him with more respect. Later in the conversation, Hale stated, “I have to be able to take a polygraph if

ever it comes up and pass it, if I’m ever asked if I have ever

ordered, instructed, or encouraged illegal activity, I want to

be able to pass that polygraph.” In May 2002, as the discord

between Hale and Hassett escalated, Evola once again

asked Hale “what you want done with him,” and Hale

explained that he had reported Hassett to the police for

stealing funds from the church and hoped he would be

arrested.

All this was a prelude to the events of late 2002 leading to

Hale’s arrest. In November, after Judge Lefkow issued the

order requiring the World Church to cease using its trademarked name, Hale penned a tract entitled “Rigged Court

System Declares War on Church” and sent it to his followers. Hale wrote that the order “places our Church in a state

of war with this federal judge and any acting on authority

of her kangaroo court.” Hale branded the mandate a “book

burning order,” suggesting to his followers that all World

Church literature—including their guiding light, The White

Man’s Bible—would have to be destroyed. Though the

World Church was represented by counsel, Hale personally

sent a letter to Judge Lefkow on December 12, 2002,

complaining that “gross injustice” and “fraud” had occurred

in the case. He also wrote that he was no longer in control

of World Church activities, and that “from [his] understand-
No. 05-1922 9

ing of the Court’s order [he had] no material in [his] control

or possession that falls afoul of it.”

On December 4, 2002, just days after Hale disseminated

his manifesto, he emailed Evola and asked him to locate the

home address of “Judge Joan H. Lefkow, PROBABLE JEW

OR MARRIED TO JEW,” as well as the home addresses of

the three attorneys, all male, who represented the Foundation in the trademark case. Hale labeled two of the lawyers

“JEW” and the other “TRAITOR WHITE.” He concluded the

message by stating: “Any action of any kind against those

seeking to destroy our religious liberties is entirely up to

each and every Creator according to the dictates of his own

conscience.”

On December 5, Evola went to Hale’s home unannounced to discuss the email “about the Jew judge” and, in

particular, Hale’s request to locate her home address:

Hale: That information, yes, for educational purposes

and for whatever reason you wish it to be.

Evola: Are we gonna . . . I’m workin’ on it. I, I got a

way of getting it. Ah, when we get it, we gonna

exterminate the rat?

Hale: Well, whatever you wanna do. . .

Evola: Jew rat?

Hale: . . . basically, it’s, you know? Ah, my position’s

always been that I, you know, I’m gonna fight

within the law and but ah, that information’s

been pro-, provided. If you wish to, ah, do

anything yourself, you can, you know?

Evola: Okay.

Hale: So that makes it clear.

Evola: Consider it done.

Hale: Good.
10 No. 05-1922

Hale asked Evola to send him the address once he

learned it so that Hale could post it on the Internet.

On December 9, Evola sent an email to Hale announcing:

I called the exterminator I know about the rat problem we talked about. The guy is good and does a good

quiet job. You have to know where rats hide and he

think [sic] he located her. He is working to get rid of the

femala [sic] rat right now.

Hale did not reply, but an electronic receipt confirms that

he opened the message.

On December 17, Evola appeared unannounced at

Hale’s home to discuss the plan. Hale did not want to

discuss the matter because he assumed that he was “always

being listened to, watched, monitored.” When Evola mentioned “exterminating the rat,” Hale answered, “I can’t be

a party to such a thing” and lamented that Evola was

putting him “in an impossible situation.” Hale expressed his

concern that “there’s a federal statute that makes it . . . an

imprisonable offense to know about a crime that’s to be

occurred . . . without telling anybody.” Evola stated that the

plan was already in motion and that it was costing him

more than he expected; he asked Hale if there were “two

trusted brothers that could help out with this.” Hale

responded, “I can’t take any steps to further anything

illegal, ever.” Evola then asked if he could stay with Hale

“when this stuff does come to happen,” and Hale refused,

explaining that he was concerned about being considered

“some kind of accessory in something I do not want to be an

accessory in.” Hale later stated: “I’m not telling you to do

anything, you know. Either way.” “[W]hatever a person

does,” he added, “is according to the dictates of their own

conscience.” Evola again alluded to compensating the

assassins and mentioned being “a couple hundred short.”

Hale responded, “I just can’t provide anything.” Hale stated
No. 05-1922 11

that he might “have a smile on his face” if he were to read

in a newspaper that “something happens to certain creepy

people” but that he could not “be any kind of party.” When

Evola discussed the trustworthiness of “his cousin’s

friends,” Hale replied, “[O]f course, we’re talking about

Little League baseball, aren’t we?” Hale asked Evola not to

turn up unannounced at his home again.

Hale was arrested in Chicago on January 8, 2003, when

he appeared for a contempt hearing for his refusal to

comply with Judge Lefkow’s order in the trademark case.

Pursuant to a third superceding indictment filed in October

2003, he was charged with three counts of obstructing

justice, 18 U.S.C. § 1503, and two counts of soliciting a

crime of violence, id. § 373. The latter counts separately

charged Hale with soliciting Tony Evola and another

follower named Jon Fox to murder Judge Lefkow. The

obstruction charges concerned (1) Hale’s letter of December

12, 2002, falsely advising Judge Lefkow that he possessed

no materials that violated the court’s order; (2) his attempts

to thwart Judge Lefkow in the discharge of her duties by

soliciting her murder; and (3) his alleged directives to his

father to lie to the grand jury.

Before trial the government notified Hale of its intent

to introduce testimony and recorded conversations regarding Hale’s “relationship with Ben Smith” and his

“conduct on the days immediately following the Smith

shooting spree.” The government, citing Federal Rule of

Evidence 404(b), argued that the proposed evidence was

“strongly corroborative” of Hale’s “intent in the solicitation case.” Hale objected, arguing that evidence concerning Smith would be inflammatory and its probative value, if

any, outweighed by its prejudicial effect, see Fed. R. Evid.

403. The district court deferred its ruling until the evidence

was presented at trial.
12 No. 05-1922

Hale was tried before a jury in April 2004. At trial the

government called James Burnett, a former member of the

World Church and former assistant to Hale. When the

government began to question Burnett about Benjamin

Smith, Hale objected. The government responded that

the jury needed to hear Hale’s favorable comments about

Smith in order to properly interpret his other remarks

including the claims that he always encouraged his followers to act within the law. The government argued that

Hale’s refusal to condemn Smith’s murderous rampage and

his outright praise of Smith were prime examples that his

instructions to act within the law were not meant to be

taken seriously. The district court allowed Burnett to

testify, but admonished the government to “stay away from

anything that’s going to be inherent in saying that Hale had

anything to do with Ben Smith.” The district court offered

to give a limiting instruction to the jury, but Hale’s counsel

replied, “[W]e think it’s so prejudicial that we don’t want to

highlight it.” The district court encouraged counsel to notify

the court at any time should he change his mind and want

a limiting instruction. Burnett then testified about two

conversations during which Hale opined that Smith’s

shootings were “perfectly moral” because the victims were

“not white.” According to Burnett, Hale also stated that he

wished Smith “would have killed more race traitors.” It was

through Burnett that the government introduced the

recording of Hale’s eulogy of Smith.

Hale renewed his objection when the government later

sought to introduce through Tony Evola the recorded

conversations and Internet communications the two had

regarding Smith. Hale’s attorneys singled out portions

of the transcripts they considered particularly inflammatory, including Hale’s jokes about the victims, his racial

slurs, and his comment that Smith must have had fun

during his rampage. The district court initially ruled in

favor of Hale, concluding that the probative value of the
No. 05-1922 13

evidence “is just outweighed by the prejudice.” But when

the government pressed its position that the evidence

was highly probative of the specific-intent element of § 373,

the district court reconsidered: “[T]his case is about a

defendant who . . . can be said to talk out of both sides of his

mouth. The evidence the defense objects to is probative of

which statements the defendant wanted Mr. Evola to

understand or meant seriously; and, therefore, it’s highly

probative of his intent.” The court added that it viewed the

evidence as outside the scope of Rule 404(b) because that

rule “doesn’t preclude evidence probative of intent in a

specific intent crime, which is what we’ve got here.” Instead

the court characterized the admissibility of the evidence as

a consideration under Rule 403 and concluded that the

“probative value is not outweighed by any unfair prejudice

to the defendant.” The defense again declined an instruction

that would have admonished the jury not to consider the

evidence for a purpose other than to establish the element

of intent.

The specter of Benjamin Smith returned during closing argument when the government, as expected, reminded the jury that Hale had made a hero out of a follower

who killed two people. And during rebuttal the prosecutor

stated: “The government had evidence that the defendant

had a member of his organization kill two people and shoot

lots of others.” Hale did not object contemporaneously to the

statement, but in his motion for a new trial he argued that

the remark was so prejudicial as to have rendered his trial

fundamentally unfair. The district judge expressed “shock”

at seeing the prosecutor’s precise words in the transcript

because they had not caught the court’s attention while

listening to the live argument. Ultimately, however, the

court concluded that the comment was understood “simply

as a reference to the fact that the shootings occurred, not

that Hale orchestrated the shootings.” The court cited the

context in which the remark was made, the various mean-
14 No. 05-1922

ings that might be given the word “had,” and the absence of

an objection. Applying the five-factor test used to analyze

whether improper argument renders a trial so unfair as

to amount to a denial of due process, see United States v.

Miller, 199 F.3d 416, 422 (7th Cir. 1999), the court concluded that the challenged statement did not rise to that

level.

The jury found Hale guilty on one of two counts of

soliciting a crime of violence and on all three counts of

obstructing justice. After the verdicts Hale renewed his

earlier motions for judgment of acquittal, see Fed. R. Crim.

P. 29(c), which the district court granted only as to the

obstruction count relating to Hale’s alleged attempts to

influence his father’s testimony before the grand jury. Thus

Hale was ultimately convicted of solicitation and obstruction in connection with his efforts to have Judge Lefkow

killed, and obstruction in connection with his letter of

December 12, 2002, to the judge. The solicitation conviction

resulted from Hale’s dealings with Tony Evola; the jury

found Hale not guilty of soliciting Jon Fox.

Hale was sentenced on April 26, 2005. In light of United

States v. Booker, 543 U.S. 220 (2005), the district court

acknowledged that the sentencing guidelines were advisory but that it was nevertheless required to calculate and

consider the applicable guidelines range. For the first

obstruction conviction—the one pertaining to Hale’s letter to Judge Lefkow—the district court calculated an

offense level of 12 after making no adjustments to the base

offense level found in U.S.S.G. § 2J1.2(a). As for the second obstruction conviction, which pertains to Hale’s attempts to impede Judge Lefkow in the discharge of her

duties by soliciting her murder, the district court calculated

an adjusted offense level of 23, after adding upward adjustments because the offense involved threatening to cause

physical injury, see U.S.S.G. § 2J1.2(b)(1), and because
No. 05-1922 15

the crime was motivated by Judge Lefkow’s status as a

government officer, see id. § 3A1.2(a)(1)(A).

On the count of soliciting a crime of violence, the district

court began with a base offense level of 28, see U.S.S.G.

§ 2A1.5(a), and again added the three-level “official victim” adjustment, see id. § 3A1.2(a)(1)(A), as well as a twolevel upward adjustment for obstruction of justice, see id. §

3C1.1. The latter stemmed from letters Hale sent while he

was awaiting trial, in which he attempted to convince Jon

Fox to testify falsely that Hale had known all along that

Evola was a government informant and that Hale could not

possibly have intended any harm to Judge Lefkow. Finally,

over Hale’s objection, the district court applied U.S.S.G. §

3A1.4 to increase the offense level by 12 levels and the

criminal history category from Category I to Category VI

because the solicitation “involved, or was intended to

promote, a federal crime of terrorism.”

The resulting total offense level of 45, in combination

with the criminal history category of VI, yielded an advisory

guidelines sentence of life imprisonment. After addressing

Hale’s objections at length, the district sentenced him to a

total of 480 months’ imprisonment. That term equals the

maximum statutory penalties of 20 years for the solicitation

count and 10 years for each obstruction of justice count.

II.

Hale appeals, challenging (1) the sufficiency of the

evidence underlying his convictions for solicitation and

obstruction in connection with the plan to kill Judge

Lefkow; (2) the admission of evidence relating to Benjamin

Smith and the comment in rebuttal appearing to blame

Hale for Smith’s shooting rampage; and (3) his sentence.

Hale had counsel at trial but has elected to represent

himself on appeal.
16 No. 05-1922

A. Sufficiency of the evidence

Hale argues that no rational trier of fact could have found

beyond a reasonable doubt that he solicited Tony Evola to

murder Judge Lefkow. He contends that his conversation

with Evola on December 17, 2002, demonstrates conclusively that he opposed Evola’s plan and that no rational

jury could have concluded that his comments suggesting

otherwise were meant to be taken seriously. According to

Hale, the government’s evidence actually exonerates him

because it establishes that he believed Evola intended to

kill opposing counsel in the trademark case, whose murder

he “had a greater motive to ‘solicit.’ ” Hale also contends

that, if the evidence is insufficient to support the conviction

for solicitation, the related conviction for obstruction of

justice must also be vacated.

When reviewing challenges to the sufficiency of the

evidence, we view all evidence in the light most favorable to

the government. See United States v. Dumeisi, 424 F.3d

566, 581 (7th Cir. 2005). We will reverse a jury’s verdict

only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See

United States v. Moore, 425 F.3d 1061, 1072 (7th Cir. 2005);

Dumeisi, 424 F.3d at 581. The appellant’s hurdle, as we

have often stated, is “nearly insurmountable.” See, e.g.,

United States v. Caldwell, 423 F.3d 754, 757 (7th Cir. 2005);

United States v. King, 356 F.3d 774, 779 (7th Cir. 2004);

United States v. Brown, 328 F.3d 352, 355 (7th Cir. 2003).

In order to meet its burden of proof on the solicitation

count, the government had to establish (1) with “strongly

corroborative circumstances” that Hale intended for Tony

Evola to arrange the murder of Judge Lefkow; and (2) that

Hale solicited, commanded, induced, or otherwise tried to

persuade Evola to carry out the crime. 18 U.S.C. § 373; see

United States v. Rahman, 34 F.3d 1331, 1337 (7th Cir.

1994); United States v. Razo-Leora, 961 F.2d 1140, 1147 n.6
No. 05-1922 17

(5th Cir. 1992); United States v. Korab, 893 F.2d 212, 215

(9th Cir. 1989).

Taking the second element first: the government had

to prove that Hale “solicited, commanded, induced, or

otherwise tried to persuade” Evola to carry out a violent

crime. The government argues that the solicitation was

accomplished “through coded and disguised language.”

Asking Evola to locate Judge Lefkow’s home address “for

whatever reason you wish it to be” was, according to the

government, “Hale’s code for approving the attack.” For his

part, Hale all but concedes that there was adequate evidence with respect to this element; he seems to accept that

the government proved he solicited the murder of someone,

just not Judge Lefkow.

We conclude that there is sufficient evidence in the record

to support the jury’s finding on the solicitation element.

Hale knew that Evola was willing to arrange murder on his

behalf; he had offered to do so on several previous occasions,

and Hale had engaged him in serious discussion concerning

at least one of those proposed victims. Hale also knew that

securing a proposed victim’s home address was a preliminary step in Evola’s process; it is through that lens that the

government asked the jury to read Hale’s email of December 4, 2002, asking Evola to acquire Judge Lefkow’s home

address. Evola followed up Hale’s email by visiting him the

next day and making it clear that he interpreted the email

as a suggestion to “exterminate the rat.” When Hale

indicated that he did not want to be involved but that Evola

was free to act himself, Evola said, “Consider it done,” to

which Hale replied, “Good.” Unlike his repudiation of

Evola’s earlier plots, Hale did not “veto” Evola’s plan after

this conversation; in fact, Hale responded with silence to

Evola’s email of December 9, which can be read only as

conveying to Hale that the “exterminator” had located

Judge Lefkow and was “working to get rid of” her. In their

conversation on December 17, Hale protested that he
18 No. 05-1922

could not be involved in illegal activity in any way. In the

same conversation, however, he mentioned that he would

have a smile on his face if he was to read in a newspaper

that “something happens to certain creepy people.” As the

government has maintained, Hale tried to “create ‘plausible

deniability’ in the event his conversation was being monitored.” Under these circumstances, we have no

difficulty concluding that a jury could find from the evidence that Hale’s conduct was a call to action, not a passive

failure to intervene to stop another’s crime or, as Hale

would have us believe, disapproval of Evola’s stated preparations to kill Judge Lefkow. The jury believed the government’s theory rather than Hale’s, and it is not our place to

reweigh the evidence, see Brown, 328 F.3d at 355.

Having decided that a rational jury could conclude that

Hale tried to persuade Evola to act, we now examine

whether the government met its burden of producing

evidence “strongly corroborative” of Hale’s intent that Evola

murder Judge Lefkow. 18 U.S.C. § 373; see Rahman, 34

F.3d at 1337. Examples of circumstances “strongly corroborative” of intent include the defendant offering or promising

payment or another benefit in exchange for committing the

offense; threatening harm or other detriment for refusing to

commit the offense; repeatedly soliciting or discussing at

length in soliciting the commission of the offense, or making

explicit that the solicitation is serious; believing or knowing

that the person solicited had previously committed similar

offenses; and acquiring weapons, tools, or information for

use in committing the offense, or making other apparent

preparations for its commission. United States v. Gabriel,

810 F.2d 627, 635 (7th Cir. 1987) (citing S. Rep. No. 307,

97th Cong., 1st Sess. 183 (1982)); United States v. McNeill,

887 F.2d 448, 450 (3d Cir. 1989). These examples are not

exclusive, nor are they conclusive indicators of intent

to solicit. Gabriel, 810 F.2d at 635. The existence of strongly

corroborating circumstances is a question of fact for the

jury. See id. at n.5.
No. 05-1922 19

We conclude that there was sufficient evidence from

which the jury could determine that Hale possessed the

requisite intent. Hale provided Evola with Judge Lefkow’s

name and business address in order to help him locate the

judge’s home address. On December 17, 2002, Hale and

Evola discussed at length the plan to have the judge

murdered, albeit in oblique terms. And Hale had every

reason to believe that Evola would arrange to have Judge

Lefkow killed at his request as Evola had offered to provide

the same service with respect to Ken Dippold, Dan Hassett,

and Pat Langballe. Hale’s suggestion to Evola that he

should do “whatever you wanna do” to Judge Lefkow thus

evinces Hale’s intent to have the judge murdered. And Hale

made his intent patent when he sent Evola an email with

the judge’s name and business address along with the

admonition, “Any action of any kind against those seeking

to destroy our religious liberties is entirely up to each and

every Creator according to the dictates of his own conscience”; Evola’s prior offers to “take care of” people established exactly what actions would be in accord with the

dictates of his conscience. Hale cannot pretend that Evola

did not tell him repeatedly over the course of their acquaintance that he had “friends” willing to perform acts of

violence. And Hale made his desire explicit by replying with

“Good” when Evola told him on December 5 that the plan to

“exterminate the rat” was as good as done. Hale’s insistence

that he thought Evola was talking about someone else on

December 5 is a frivolous argument on this record, particularly because in the days that followed Evola identified the

target in language that pointed to the judge alone, but Hale

said nothing to suggest that a misunderstanding had

occurred. Evola’s email to Hale on December 9 assured Hale

that the “exterminator” he had called “located her” and was

“working to get rid of the femala [sic] rat right now.” Judge

Lefkow was the only woman on the list that Hale sent on

December 4, so his defense that he was confused about the

intended victim is unconvincing. Hale’s inaction after
20 No. 05-1922

opening Evola’s email of December 9 stands in stark

contrast to his “veto” of Evola’s plan for Ken Dippold and is

strong evidence that it was the judge he wanted killed.

Hale’s statements that he did not wish to participate

in illegal conduct do not call into question the jury’s findings with respect to his intent. The government convincingly portrayed Hale as a leader who encouraged each

follower to act “according to the dictates of his own conscience”—in reality Hale’s conscience—while verbalizing his

own commitment to following the law. Hale never criticized

Evola’s desire to inflict harm on Hale’s enemies even as he

attempted to insulate himself from blame. When Evola

informed Hale that a plan was in motion to assassinate

“traitor” Ken Dippold, Hale told Evola that he thought

“extremely well” of him for his idea although he ultimately

canceled the plan because he was concerned that he could

be personally implicated. Likewise, with respect to

Benjamin Smith, Hale repeatedly stated that the World

Church operated within the confines of the law but nevertheless refused to condemn Smith’s actions and painted

Smith as a martyr to the cause of white supremacy. This

pattern was consistent with Hale’s behavior when Evola

offered to have Judge Lefkow killed; he professed his own

desire to follow the law but encouraged Evola to do whatever he wanted. In Gabriel, the appellants who had been

convicted of soliciting the arson of their businesses argued

that their attempt to postpone the crime and their refusal

to supply the arsonist with alcohol for the fire and keys

proved that they were not serious about the arson. We

concluded that the jury could have inferred that their

actions “were means of distancing themselves from the

planned arsons and not designed to rebuff or discourage”

the crime. Gabriel, 810 F.2d at 635-36. In this case too

it was up to the jury to decide between competing views

of the evidence, and it accepted the government’s theory

that Hale’s refusal to overtly help with the crime and
No. 05-1922 21

his ruminations on his innocence masked his true intention

that Evola carry out their plan. We will not substitute our

judgment for the jury’s. See United States v. LaShay, 417

F.3d 715, 718 (7th Cir. 2005).

B. Evidentiary Rulings

Hale challenges the district court’s admission of testimony and recorded conversations concerning Hale’s positive

comments about Benjamin Smith. Hale argues that this

evidence should have been excluded under Federal Rule of

Evidence 404(b) because it had “zero” probative value and

was unfairly prejudicial. See United States v. Robinson, 161

F.3d 463, 467 (7th Cir. 1998).

Rule 404(b) “forbids the use of evidence of a defendant’s

history of illegal or unethical acts to prove that he is a

person of bad character and likely therefore to have committed the crime of which he is accused in the present case, or

perhaps some other, undetected crime for which he should

be punished.” United States v. Paladino, 401 F.3d 471, 474-

75 (7th Cir. 2005). If the evidence is relevant to another

issue, such as intent, Rule 404(b) is not a basis for exclusion. See United States v. Macedo, 406 F.3d 778, 792 (7th

Cir. 2005). Neither does the rule bar the admission of

evidence of acts so “inextricably intertwined” with, or

“intricately related” to, charged conduct that it helps the

factfinder form a more complete picture of the criminal

activity. See Paladino, 401 F.3d at 475; United States v.

Gougis, 432 F.3d 735, 742 (7th Cir. 2005). The evidence

must of course be relevant; it must have “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401;

see United States v. Price, 418 F.3d 771, 778 (7th Cir. 2005).

But even relevant evidence will be excluded if its probative
22 No. 05-1922

value is outweighed by the danger of unfair prejudice. Fed.

R. Evid. 403; see Gougis, 432 F.3d at 743.

We review the district court’s evidentiary rulings for

an abuse of discretion. See United States v. Turner, 400 F.3d

491, 499 (7th Cir. 2005). We give special deference to the

district court’s assessment of the balance between probative

value and prejudice because that court is in the best

position to make such assessments. See id. As the district

court phrased it, the evidence pertaining to Smith was

probative in that it demonstrates that Hale was someone

who “talk[ed] out of both sides of his mouth.” Hale’s reaction

to the Smith shootings fit into the government’s mosaic of

evidence portraying him as a leader eager to accept the

“benefit” of his followers’ actions but take no responsibility

for them. Hale welcomed the publicity that he and the

World Church experienced after the Smith shootings, and

though he continued to profess a personal philosophy of

clean living, he essentially encouraged his followers to do

whatever they pleased, well aware of the lengths to which

some might go. The evidence relating to Smith provided

context for the jurors when hearing about Hale’s dealings

with Evola; it allowed them to decide whether Hale was

trying to insulate himself from culpability while orchestrating a crime or whether he was merely talking to his friend

Tony about “Little League baseball.” Hale’s reaction to

the Smith shootings, above all, sent a message to his

followers about how he expected them to proceed in the

future, about who a model “brother” was. In a solicitation case—which hinges on the defendant’s relationship to

the ultimate actor—such evidence is probative.

On the other side of the scale, the potential prejudice was

also significant. Hale’s remarks consisted of kind words

about a man who had briefly terrorized the community just

a few years before and jokes and slurs aimed at the victims.

There is the risk that listening to Hale’s comments could

engender in the jurors a desire to hold him responsible for
No. 05-1922 23

Smith’s crimes or punish him for his noxious views. That

possibility admittedly troubled the district court, but we

note that Hale’s counsel twice rejected the court’s offer of a

limiting instruction, a device that we frequently have

recognized as an effective means of preventing the jury from

deciding a case on improper grounds. See United States v.

Chavis, 429 F.3d 662, 688-69 (7th Cir. 2005); United States

v. Puckett, 405 F.3d 589, 599 (7th Cir. 2005). We realize

that counsel made a strategic decision not to underscore the

evidence, but that strategy also conveys Hale’s contemporaneous belief that accepting the risk of misuse was preferable to focusing the jury on a proper use of the evidence. We

find it to be a close question but we cannot quarrel with the

district court’s deliberative decision to admit the challenged

evidence. See United States v. Toro, 359 F.3d 879, 884-85

(7th Cir. 2004).

Hale, though, argues that the prejudice must be measured

in light of the prosecutor’s remark during his rebuttal

argument that “the government had evidence that the

defendant had a member of his organization kill two people

and shoot lots of others.” Hale contends that this statement

violated the district court’s admonition not to link Hale to

the Benjamin Smith shootings and “poisoned” the trial. For

its part the government concedes that, in isolation, the

statement “could be construed as arguing that defendant

directly ordered Smith to engage in the shooting spree,” but

argues that any error was harmless.

Hale’s argument is better characterized as a claim of

prosecutorial misconduct separate from the district court’s

evidentiary ruling. In analyzing such claims, we first

determine whether the prosecutor’s remark was improper.

United States v. Wesley, 422 F.3d 509, 515 (7th Cir. 2005).

If so, and if the remark was generally improper but not

directed at a specific constitutional right, we consider the

remark in light of the entire record and evaluate whether
24 No. 05-1922

the defendant was deprived of a fair trial. Id. Our ultimate

concern is whether improper argument “so infected the trial

with unfairness as to make the resulting conviction a denial

of due process.” Darden vs. Wainwright, 477 U.S. 168, 181

(1986) (quotation marks and citation omitted); United

States v. Love, 336 F.3d 643, 647 (7th Cir. 2003). We

consider (1) whether the prosecutor misstated the evidence;

(2) whether the remark implicated specific rights of the

accused; (3) whether the defendant invited the response; (4)

the efficacy of curative instructions; (5) the defendant’s

opportunity to rebut; and, most importantly, (6) the weight

of the evidence. See Love, 336 F.3d at 647-48. And because

Hale did not object to the prosecutor’s rebuttal at trial, he

has the added burden of demonstrating plain error. United

States v. Washington, 417 F.3d 780, 786 (7th Cir. 2005).

This requires him to establish not only that he was deprived

of a fair trial, but that the outcome of the proceedings would

have been different absent the improper remark. United

States v. Della Rose, 403 F.3d 891, 906 (7th Cir. 2005);

United States v. Sandoval, 347 F.3d 627, 631 (7th Cir.

2003).

Like the district court, we are perplexed by the government’s explanations for the comment. During posttrial

proceedings, the government defended the remark as a

fair inference from the evidence and an appropriate rebuttal

to defense counsel’s own argument that the government had

been working to “set up” Hale since the Smith shootings.

The district court deemed this position “surprising and

troubling” in that it suggested that “the government

intentionally reneged on its promise to the court and to

defense counsel” that it would not blame Hale for Smith’s

rampage. The district court was willing to assume, however,

that the government was merely casting for the best

argument to justify a slip of the tongue. Apparently ungrateful for this allowance, the government equivocates and

first tells us that it “stands by” its position that the remark
No. 05-1922 25

was appropriate and supported by the record (this despite

being “equally as shocked as the district court that this line

appeared in the record”). If that is so, then the government

confirms the district court’s fear that it deliberately violated

the court’s instruction. Worse still, we cannot agree that the

statement is supported by the evidence, which convincingly

shows Hale’s delight at Smith’s crimes but not his prior

approval. The import of the statement, read literally and in

isolation, is that the government “had evidence” that was

not admitted at trial showing that Hale orchestrated the

Smith shootings, an inference that is “clearly improper.” See

United States v. White, 222 F.3d 363, 370 (7th Cir. 2000).

Ultimately, however, the government steps back from its

defense of the remark, describing as “particularly accurate”

the district court’s view that the prosecutor “misspoke in

the heat of the moment” and attempted to justify the errant

comment instead of acknowledging it. We are not charged

with deciding whether the remark was made deliberately or

accidentally, but the government’s reluctance to fully

disavow it only adds weight to Hale’s argument.

Nevertheless, Hale has a steep hill to climb. The remark

was improper, but we agree with the district court that

Hale was not prejudiced. Though he could not reply to

the rebuttal argument, we are not inclined to give great

weight to this factor when the record suggests that no one

in the courtroom noticed the remark. The district court was

in a better position to assess its impact, see United States v.

Mealy, 851 F.2d 890, 903 (7th Cir. 1988), and the court

concluded that the remark was “taken by all” as a reminder

that the shootings occurred rather than an assertion that

Hale ordered them. This view is corroborated by Hale’s

failure to object to this statement even though counsel

objected frequently throughout the prosecutor’s rebuttal.

And the surrounding context also went far in reducing the

prejudicial effect:
26 No. 05-1922

Weisman: As to Mr. Evola, before Tony Evola even

had any conversations with the defendant,

we knew a lot about him. Ben Smith killed

two people, and he thought that was—

Durkin: Judge, I object to the prosecutor’s use of

“we” as putting his own integrity at issue

here.

The Court: I think his use of the word “we,” probably

the government I am assuming.

Weisman: The government had evidence that the

defendant had a member of his organization kill two people and shoot lots of others.

And the defendant got on national television and said it wasn’t that bad of a thing.

The problem with it wasn’t that there were

two people dead, but that his law license

might be denied.

The government’s emphasis here, as it had been throughout

the trial, was on Hale’s reaction to the shootings after they

occurred, not on any alleged involvement before the fact.

Moreover, the remark is an isolated comment in the context

of a trial during which the government otherwise obeyed

the court’s admonition not to suggest that Hale was behind

the Smith shootings. The evidence against Hale was

considerable, and the prosecutor’s comment was not of the

sort that improperly called attention to his exercise of a

particular right. Mindful of the exacting plain error standard, we cannot say Hale has met his burden of establishing that the outcome of his trial would have been different

but for the prosecutor’s remark.

C. Sentence

Finally, Hale challenges his overall 480-month sentence

on several grounds. We may quickly dispose of his argu-
No. 05-1922 27

1 Under 18 U.S.C. § 2332b(g)(5)(B), a “federal crime of terrorism”

is defined as a listed offense that was calculated to influence

or affect the conduct of government by intimidation or coercion, or

to retaliate against government conduct. The enumerated crimes

include 18 U.S.C. § 1114, the murder or attempted murder of

officers and employees of the United States. The definition of

“federal crime of terrorism” appears within a statutory section

entitled “Acts of terrorism transcending national boundaries,” see

§ 2332b, and some of the cases cited above involve international

terrorism, but the 1996 and 1997 amendments to the sentencing

guidelines removed any requirement that international terrorism

be implicated by the offense of conviction; the guidelines simply

borrow the statutory definition from § 2332b(g)(5)(B). See

Graham, 275 F.3d at 497-98 (enhancement applied to member of

(continued...)

ment regarding the application of U.S.S.G § 3A1.4, the

terrorism adjustment. Relying on United States v. Arnaout,

282 F. Supp. 2d 838 (N.D. Ill. 2003), Hale argues that

§ 3A1.4 cannot apply because he was not convicted of a

“federal crime of terrorism.” Our decision on appeal in

that case forecloses his argument. We held that § 3A1.4

applies “where a defendant is convicted of a federal crime of

terrorism as defined by [18 U.S.C.] § 2332b(g)(5)(B)

or where the district court finds that the purpose or intent of the defendant’s substantive offense of conviction

or relevant conduct was to promote a federal crime of

terrorism as defined by § 2332b(g)(5)(B).” United States v.

Arnaout, 431 F.3d 994, 1001 (7th Cir. 2005) (emphasis

added); accord United States v. Mandhai, 375 F.3d 1243

(11th Cir. 2004); United States v. Graham, 275 F.3d 490

(6th Cir. 2001). That Hale did not commit a federal crime of

terrorism is irrelevant; the district court found that

the purpose of his soliciting Evola was to promote a federal crime of terrorism—the murder of a federal officer

or employee.1

 Hale does not argue that the court’s factual
28 No. 05-1922

1 (...continued)

domestic militia involved in plot to forcibly overthrow the

government); United States v. Nichols, 169 F.3d 1255, 1270 n.5

(10th Cir. 1999) (explaining that § 3A1.4 would apply to Terry

Nichols, convicted for his role in the bombing of the Alfred P.

Murrah building in Oklahoma City, but for ex post facto considerations).

finding is clearly erroneous, so the adjustment applies.

Hale also makes the frivolous argument that the remedial

opinion in Booker retroactively increased his sentence, depriving him of due process. We held in United

States v. Jamison, 416 F.3d 538, 539 (7th Cir. 2005), that

there is no ex post facto claim to be made based on the

remedial holding in Booker. Equally frivolous is Hale’s

argument that his sentence was increased based upon facts

not charged in the indictment or proven to a jury beyond a

reasonable doubt in violation of Apprendi v. New Jersey, 530

U.S. 466 (2000). Hale was sentenced after Booker, and the

district court treated the guidelines as advisory; no constitutional violation resulted from the application of upward

adjustments based on facts found by the district court by a

preponderance of the evidence. See United States v. Belk,

435 F.3d 817, 819 (7th Cir. 2006) (“[J]udges may continue

to make findings based on a preponderance of the evidence,

provided that they do not treat the Sentencing Guidelines

as ‘laws’ with binding effect.”).

Finally, Hale argues that his overall sentence is unreasonable. We have rejected Hale’s sole challenge to the

calculation of the guidelines range—the application of

§ 3A1.4—and will accept the range as properly calculated and therefore presumptively reasonable. See United

States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Hale

can rebut the presumption by establishing that the sentence

is unreasonable when measured against the factors set

forth in 18 U.S.C. § 3553(a). See id. He points to two factors:
No. 05-1922 29

“the nature and circumstances” of the offense and “the

history and characteristics of the defendant.” The first

argument is flimsy; Hale asserts that the government’s role

in the offense—“two years of attempts by the FBI to steer

[him] away from obeying the law”—renders his sentence

unreasonable. The argument suggests “sentencing entrapment,” which occurs when an individual predisposed to

commit a lesser crime commits a more serious offense as a

result of “unrelenting government persistence.” See United

States v. Gutierrez-Herrera, 293 F.3d 373, 377 (7th Cir.

2002); United States v. Estrada, 256 F.3d 466, 473-74 (7th

Cir. 2001). The government overcomes an alleged entrapment defense by establishing that the defendant was

predisposed to commit the offense charged. This is not a

great hurdle; “all that must be shown to establish predisposition and thus defeat the defense of entrapment is willingness to violate the law without extraordinary inducements.”

Estrada, 256 F.3d at 475. Hale asserts that he would not

have solicited Judge Lefkow’s murder if not for the government’s involvement, but he has not established that the

government, through Tony Evola, used “extraordinary inducements” to elicit criminal activity. As we have stated,

the best way to manifest one’s unwillingness to participate in criminal activity, and avoid the attendant penalties,

is to “say no and walk away.” United States v. Wilson, 129

F.3d 949, 951 (7th Cir. 1997).

As for Hale’s “history and characteristics,” he asserts that

he is entitled to a lower sentence because he lacks a prior

criminal record, he is a law school graduate, and his father

is a retired police officer. The district court was aware of

these facts, considered them, and explained at length why

Hale merited the overall sentence imposed. Hale was

entitled to no more. See United States v. Williams, 436 F.3d

767, 769 (7th Cir. 2006); United States v. Laufle, 433 F.3d

981, 987-88 (7th Cir. 2006); United States v. Cunningham,

429 F.3d 673, 675-76 (7th Cir. 2005).

AFFIRMED.
30 No. 05-1922

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-30-06