PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1567

_____________

UNITED STATES OF AMERICA

v.

BRANDON PIEKARSKY,

Appellant

_____________

On Appeal from the District Court

for the Middle District of Pennsylvania

(No. 3-09-cr-00396-1)

District Judge: Honorable A. Richard Caputo

_____________

No. 11-1568

_____________

UNITED STATES OF AMERICA

v.

DERRICK DONCHAK,

Appellant
2

___________

On Appeal from the District Court

for the Middle District of Pennsylvania

(No. 3-09-cr-00396-2)

District Judge: Honorable A. Richard Caputo

___________

Argued on January 12, 2012

Before: McKEE, Chief Judge, FUENTES and JORDAN, 

Circuit Judges

(Opinion Filed: June 18, 2012)

James A. Swetz, Esq. (ARGUED)

Cramer, Swetz & McManus, P.C.

711 Sarah Street

Stroudsburg, PA 18360

Attorney for Appellant Brandon Piekarsky

William A. Fetterhoff, Esq. (ARGUED)

Fetterhoff and Zilli

218 Pine Street

Harrisburg, PA 17101

Attorney for Appellant Derrick Donchak

Thomas E. Perez
3

Assistant Attorney General

Jessica Dunsay Silver

Angela M. Miller (ARGUED)

U.S. Department of Justice

Civil Rights Division, Appellate Section 

Ben Franklin Station

P.O. Box 14403

Washington, DC 20044-4403

Attorneys for Appellee
4

OPINION OF THE COURT

FUENTES, Circuit Judge:

Brandon Piekarsky and Derrick Donchak were 

convicted in federal court for the brutal beating and eventual 

death of Luis Ramirez, a resident of the Defendants’ town. 

The Defendants were charged with criminal violation of the 

Fair Housing Act, 42 U.S.C. § 3631, which penalizes actions 

taken against an individual on account of his race, color or 

national origin, and with the specific intent to intimidate the 

victim or others like him from exercising their right to 

housing free of discrimination. On appeal, they argue that the 

District Court erred in instructing the jury that the 

Government was not required to prove that issues of race and 

occupancy were the Defendants’ only motivations in beating 

Ramirez. The Defendants also raise other issues, including 

whether double jeopardy barred their federal trial and whether 

the evidence was sufficient to support a conviction under § 

3631. For the reasons that follow, we will affirm.

I. 

A.

This case arises out of an exceedingly disturbing series 

of events that culminated in the beating and eventual death of 

Luis Ramirez, a resident of Shenandoah, Pennsylvania, on 

July 12, 2008. Donchak and Piekarsky, then eighteen and 

sixteen years old, respectively, were also residents of 

Shenandoah. On the night of July 12, 2008, they were 

accompanied by a group of other young Shenandoah 
5

residents: Brian Scully, Ben Lawson, Colin Walsh and Josh 

Redmond, all of whom played high school football with, and 

were close friends of, the Defendants. Scully, Walsh and 

Redmond were key witnesses for the federal prosecution in 

this case. 

At trial, the testimony revealed that members of this 

group regularly made derogatory comments about Hispanic or 

Latino individuals, and frequently voiced their displeasure 

with the presence of such individuals in Shenandoah. The 

friends often referred to such individuals as “Mexicans” 

because they considered it to be a derogatory term. (Append. 

221.) Scully testified that he, Donchak and Walsh would 

frequently discuss the increasing Hispanic population in 

Shenandoah, and would say things like “Get them out of 

here,” or “[I]t’s not good for our [t]own.” (Id.) Lawson 

testified that these sentiments were shared by many people in 

his high school class. (Append. 211-12.) Walsh testified that 

Donchak, in particular, was very vocal in these sentiments,

and that he “really didn’t like Hispanic people.” (Append. 

379.) He also stated that Donchak often wore a t-shirt that 

said “Border Patrol,” and drove through town blasting “The 

White Man Marches On”—a white supremacist anthem that 

glorifies the use of violence against minorities—from the 

speakers of his pickup truck. (Append. 379, 381.)

On the night of Ramirez’s beating, Piekarsky, 

Donchak, and their friends encountered Luis Ramirez and 

became engaged in a verbal disagreement with him. That 

verbal disagreement escalated to a physical altercation which 

resulted in the savage beating of Ramirez by Donchak, 

Piekarsky and other members of the group as he lay on the 

ground. Ramirez died two days later as a result of the injuries 

he sustained. 
6

Prior to that encounter, the group had been partying 

and drinking malt liquor near a creek in Shenandoah for two 

or more hours. They then attended a neighborhood Polish 

American block party, but were asked to leave shortly after 

they arrived, when Piekarsky became involved in a verbal 

altercation with another partygoer and had to be physically 

restrained by his friends. 

It was after they left the party, while walking through a 

neighborhood park, that the group encountered Ramirez, who 

was accompanied by Roxanne Rector. Scully made a 

comment to Rector to the effect that it was too late for her to 

be out. Ramirez, who was sitting nearby on a park swing, 

stood up and said something to the group in Spanish. Scully 

responded to Ramirez, saying, “This is Shenandoah. This is 

America. Go back to Mexico.” (Append. 149.) From there, 

the situation escalated. Ramirez responded with more words, 

and took out his cell phone to call someone. Donchak called 

Ramirez a “Spic,” (Append. 228) and Walsh told Ramirez to 

“Get the fuck out of here” (Append. 387, 639). Ramirez, at 

Rector’s insistence, began walking backwards out of the park 

and away from the group.

When Ramirez reached the street, he turned his back to 

the group and continued to walk away. Piekarsky, joined by 

Walsh and Scully, ran after Ramirez. Piekarsky and Ramirez 

began fighting, and Piekarsky eventually picked Ramirez up 

and threw him to the ground. Piekarsky apparently attempted 

to kick Ramirez while he was down, but tripped and fell over. 

By the time Ramirez stood up, Donchak had run over from 

the park and begun repeatedly punching Ramirez in the face,

calling him a “fucking Spic.” (Append. 389-90.) Ramirez 

eventually fell to the ground, at which point the rest of the 

group joined in on the beating. 
7

At this point, the group was positioned across the 

street from the park, in front of a home. Donchak, Walsh, 

Piekarsky and Scully stood over Ramirez and kicked him 

repeatedly. Walsh testified that he kicked Ramirez in the 

lower body “just once,” but that “everybody else was kicking 

him in the upper part, in his head and his chest and his upper 

body.” (Append. 391.)

The kicking stopped when Victor Garcia—Ramirez’s 

friend, whom he had called on his cell phone at the beginning 

of the altercation—arrived with his then-fiancée Arielle, 

whom the Defendants knew from school. As Garcia 

approached, the group broke up and began walking down the 

street. One member of the group called at Garcia, screaming, 

“Fucking Mexican.” (Append. 545-546.) Donchak, who was 

still standing nearby, threw a few more punches at Ramirez 

and, as he walked away, turned and again said, “Fuck you 

Spic.” Walsh addressed Arielle and said, “This isn’t racial.”

(Append. 392.) Scully turned and said, “Go home, you 

Mexican motherfucker.” (Append. 233-234.) Apparently 

provoked by these comments, Ramirez—who was standing at 

this point—charged at Scully, and the two began fighting. 

Walsh ran up and punched Ramirez in the face, causing him 

to fall backwards “like a brick,” slamming his head against 

the concrete. (Append. 527.) Then, as Ramirez lay on the 

ground, motionless, Piekarsky ran up and kicked Ramirez in 

the side of the head. Arielle testified that the kick delivered 
8

was so forceful that it made a “crack” sound, and caused 

Ramirez’s head to fly to the side.1

Witnesses testified that, immediately after Piekarsky 

kicked him in the head, Ramirez began convulsing and 

making “snoring” sounds. (Append. 488.) The Defendants 

and their friends fled the scene at this point. One member of 

the group—either Piekarsky or Scully—yelled, “Tell your 

fucking Mexican friends to get the fuck out of Shenandoah or 

you’re going to be fucking laying next to him.” (Append. 

325.) Someone called 9-1-1, but Ramirez was unconscious 

and unresponsive when medical help arrived. By that time, 

his head was misshapen, and his face was swollen. He was 

taken by helicopter to a nearby trauma center. Two days 

later, he died.

 (Append. 488.)

In the days after the accident, the Defendants and their 

friends hatched a plan to conceal what had happened during 

the fight with Ramirez. That plan appears to have included 

the Defendants, their friends, Piekarsky’s mother, and three 

officers of the Shenandoah Police Department—Officer Jason

Hayes, Lt. William Moyer and Chief of Police Matthew 

Nestor,2

 

1 Medical testimony produced at trial stated that the kick, 

combined with the fall that preceded it, were the cause of the 

damage to Ramirez’s skull and his eventual death. 

all of whom were friends of the Piekarsky family. 

2 In a separate federal proceeding, Nestor, Moyer and Hayes 

were tried together on charges of conspiracy and obstruction 

of justice, stemming from these events. Following trial, a 

jury convicted Nestor of obstruction of justice in violation of 

18 U.S.C. § 1519. Moyer was convicted of making false 
9

Witnesses testified at trial that, in the hours immediately

following the incident, both Donchak and Piekarsky spoke 

with Hayes and Moyer. The group of men who had been 

present at the fight also met at Donchak’s home to discuss the 

fight. Piekarsky, who was talking with Moyer and Hayes at 

this time, called the group and assured them that he had told 

the police that the fight was not racially motivated, had only 

been a fight between Walsh and Ramirez, and that Walsh had 

acted in self defense. He also withheld the fact that he had 

kicked Ramirez in the head.

Piekarsky and his mother arrived at Donchak’s house 

later than the others and told the group that they needed to 

“get a story.” By this time, they had learned that Ramirez 

would likely die from his injuries. At the same meeting, 

according to the testimony of Redmond and Scully, the 

Defendants joked about getting the name “Lupe” tattooed on 

their bodies, given that Ramirez was “Mexican.” (Append. 

242, 302, 650.) The evidence also showed that, during this 

time, Piekarsky’s mother was in constant contact with Hayes 

and Moyer, as well as Chief Nestor.

The day after the assault, Scully was interviewed by 

Moyer, Hayes and two detectives from the Schuylkill County 

District Attorney’s Office. Scully testified at trial that, at this 

 

statements in a police report, in violation of 18 U.S.C. § 1001. 

Hayes was acquitted of all charges. See United States v. 

Nestor, No. 3:09-CR-397, 2011 U.S. Dist. LEXIS 55890 

(M.D. Pa., May 25, 2011). We recently affirmed those 

convictions on appeal. United States v. Moyer, 674 F.3d 192 

(3d Cir. 2012). 
10

interview, he intentionally withheld information regarding the 

drinking the group had done the night before, the kick to 

Ramirez’s head and the use of racial epithets. Shortly after, 

the group met again—this time explicitly in order to get their 

stories straight. The boys’ parents discussed the situation in 

the living room, while the boys spoke in the back yard. The 

group agreed to tell the police that no one had kicked Ramirez

and that no one had been drinking. They also agreed to tell 

the police that the fight was not racially motivated and to hide

the fact that they had yelled racial slurs during the beating. 3

It was only after the District Attorney’s Office fully 

took over investigation of the case—roughly one week after 

the incident—that the group’s stories began to unravel. 

During follow-up interviews with the District Attorney’s 

Office, Redmond, Scully and Walsh recanted their previous 

statements and told investigators what had really happened on 

the night Ramirez was beaten. 

B.

In July 2008, the Defendants were indicted in Shuylkill 

County Court with aggravated assault, simple assault, 

reckless endangerment of another person and ethnic 

intimidation—a general hate-crime under Pennsylvania law.

4

 

3 For a complete account of the details of the cover-up by the 

police, see Moyer, 674 F.3d 192. 

4 Under Pennsylvania’s ethnic intimidation statute, an 

individual violates the statute where he acts (1) with 

malicious intention toward the actual or perceived race, color, 

religion, etc. of an individual or group of individuals; and (2) 

commits a offense relating to arson, criminal mischief or 
11

Donchak was also charged with hindering apprehension or 

prosecution, corruption of minors with alcohol, underage 

drinking, and furnishing alcohol to minors. Piekarsky, 

because he was alleged to have been the person who kicked 

Ramirez in the head, was also charged with third-degree 

murder and voluntary manslaughter. State authorities also 

charged him with criminal solicitation to hinder apprehension 

or prosecution/giving false reports to law enforcement 

authorities, and with underage drinking. 5

In August 2008, federal authorities became more 

involved in the investigation of Ramirez’s death. At several 

points in their respective investigations, state and federal 

authorities shared information and resources in investigating 

these crimes, and in conducting interviews of key witnesses.

The state trial commenced in April 2009. After five 

days of trial and eight hours of deliberation, a Schuylkill 

County jury acquitted Piekarsky of all but the simple assault 

charge against him. Donchak was convicted of simple 

assault, corruption of minors and furnishing of alcohol to 

 

other property crimes as defined by Pennsylvania law; or (3) 

commits and crime against the targeted individual’s person. 

18 Pa. C.S. § 2710.

5 County prosecutors also charged Colin Walsh with murder, 

voluntary manslaughter, aggravated assault, simple assault, 

reckless endangerment of another person, and ethnic 

intimidation. Walsh signed a proffer agreement and 

cooperated with the state and federal officials. The charges 

against Walsh were, ultimately, dismissed. Walsh thereafter 

served as a key witness against the Defendants.
12

minors. Both Donchak and Piekarsky were sentenced with 6-

23 months’ imprisonment. Both were released on probation 

approximately six months later. 

The state court verdict triggered public outcry from 

members of the town, special interest groups and public 

figures. Shortly after the verdict, then-Governor Rendell 

wrote the Department of Justice, acknowledging the 

Department’s ongoing investigation into the assault on 

Ramirez and requesting that it consider bringing civil rights 

charges against Piekarsky and Donchak. Following the 

conclusion of its investigation into the matter, the Department 

of Justice filed federal charges.

In December 2010, a federal grand jury indicted 

Piekarsky and Donchak on charges of interfering with 

Ramirez’s federal housing rights under 42 U.S.C. § 3631. 

That statute criminalizes conduct that interferes with, 

intimidates or injures an individual because of his race or 

national origin, and because he is or is considering occupying 

a dwelling in a given neighborhood. Id. Donchak was also 

charged with conspiring to falsify, and aiding and abetting in 

the falsification of, official police reports in violation of 18 

U.S.C. § 371, and with obstruction of justice pursuant to 18 

U.S.C. §§ 1519 and 2. Both Defendants pled not guilty to the 

charges and filed a joint motion to have the indictment under 

§ 3631 dismissed for failure to state a claim, and under the 

Double Jeopardy Clause of the Fifth Amendment to the U.S. 

Constitution, in light of their acquittal in state court. The 

District Court denied these motions.

In February 2011, following trial, a federal jury in the 

Middle District of Pennsylvania found the Defendants guilty 

of criminal violations of the Fair Housing Act. Donchak was 
13

also convicted of conspiring with local police, and with 

aiding and abetting in the falsification of official police 

reports in frustration of a federal investigation.

6

C.

 The District 

Court sentenced Piekarsky to 108 months’ imprisonment, to 

be followed by three years of supervised release. Donchak 

received a sentence of 108 months’ imprisonment for the 

housing crime, 108 months’ imprisonment on the aiding and 

abetting crime under 18 U.S.C. § 1519, and 30 months’ 

imprisonment for the aiding and abetting violation under 18 

U.S.C. § 371, all terms to run concurrently and to be followed 

by three years’ supervised release. This appeal followed.

The Defendants now challenge, jointly and 

individually, numerous aspects of their convictions, their 

sentences, and certain decisions made by the District Court at 

trial. Together, they contend that the federal trial, which 

followed their acquittals in state court, violated the Double 

Jeopardy Clause of the Fifth Amendment and that the District 

Court erred in instructing the jury on the appropriate legal 

standards under 42 U.S.C. § 3631. They also argue that the 

District Court misapplied United States Sentencing Guideline 

§ 2H1.1 when it calculated their Offense Levels using 

Voluntary Manslaughter—rather than Involuntary 

 

6 At the close of the Government’s case-in-chief, Donchak 

moved to dismiss one count of obstruction of justice for 

insufficient evidence. The District Court granted that motion. 

Count 3 of the indictment, which also charged obstruction of 

justice under § 1519, was not dismissed.
14

Manslaughter—as the underlying offense for purposes of 

their conviction under § 3631.

Individually, Piekarsky also contends that the District 

Court erred in precluding him from arguing, before the jury, 

the differences between race, ethnicity, alienage and 

immigration status, and that § 3631 did not apply under the 

facts of this case; that the District Court unduly limited his 

ability to cross-examine a witness about her feelings about the 

state-court acquittal; and that there was insufficient evidence 

to convict him under § 3631. Donchak challenges the 

sufficiency of the evidence supporting his convictions under 

§§ 1519 and 371. He also argues that there was a variance 

between his indictment, which alleged a single conspiracy to 

falsify reports in hindrance of a federal investigation under 

§ 371 and the government’s proof at trial, which he argues 

proved, at best, two conspiracies.

The District Court had jurisdiction under 18 U.S.C. § 

3231. Our review is proper pursuant to 28 U.S.C. § 1291. 

II.

Donchak and Piekarsky appeal the District Court’s 

instruction to the jury on Count One of the Indictment, which 

charged a violation of the Fair Housing Act of 1968, 42 

U.S.C. § 3631. Under § 3631, it is a crime to intimidate or 

interfere with any person “because of his race . . . and because 

he is or has been . . . occupying . . . any dwelling.” 42 U.S.C. 

§ 3631(a). Similarly, it is a crime to “intimidate such person 

or any other person or any class of persons from” occupying a 

dwelling. Id. § 3631(b). 
15

At trial, Donchak and Piekarsky requested that the 

District Court provide an additional instruction to the jury on 

the meaning of § 3631 and proposed the following language: 

[I]n order to find the Defendants . . . guilty of 

Count One[,] the jury must be satisfied that the 

Government has proven beyond a reasonable 

doubt that the Defendants were motivated to 

commit an unlawful assault against Luis 

Ramirez because of his race AND because he 

was occupying a dwelling in Shenandoah. The 

Government must prove that the assault of Luis 

Ramirez occurred because of both of those 

reasons. The word “because” in the statute is 

to be understood in its common meaning. 

Dictionaries define the word “because” to 

mean “for the reason that,” or “by reason of,” 

or “due to.” 

(Supp. Append. 121 (emphasis and capitalization in 

original).) In effect, Donchak and Piekarsky urged the 

District Court to instruct the jury that race and residency had 

to be the sole or primary motivation behind the assault.

The District Court refused to instruct the jury in this 

manner, holding that, under statutes in which racial animus is 

a basis for or an element of the crime, race need only be a 

motivating factor, and not the predominant purpose. Instead, 

the District Court instructed the jury as to the elements of a 

crime under § 3631, which included a showing that the 

“defendants acted on [account] of racial bias and the 

occupancy of a dwelling in Shenandoah.” (Append. 994.) It 

then went on to explain to the jury that, in order to satisfy the 
16

third element of the crime, the government was required to 

prove that the defendants

acted because of Mr. Ramirez’s race and 

because of the race of other Latino persons 

occupying dwellings in Shenandoah and 

because Luis Ramirez and other Latino persons 

were occupying dwellings in Shenandoah. * * * 

The government need not prove that these were 

[the Defendants’] only motivation[s].

In other words, the government need not 

prove that race and occupancy were the only 

reasons for their actions. The presence of other 

motives, such as personal dislike, anger or 

revenge does not make the conduct any less a 

violation of the statute, Section 3631.

(Append. 994-95 (emphasis added).) 

On appeal, Donchak and Piekarsky maintain that this 

instruction, referred to as a “mixed motive” instruction, 

misstated the legal standard governing the specific intent 

requirement under § 3631. They argue that the instruction 

was in error because it “ignored the plain text of § 3631” by 

“diluting” the “plain, universally understood meaning” of the 

word “because” and inviting the jury to convict the 

Defendants “even if they found that Piekarsky and Donchak 

had other motives.” (Piekarsky Br. at 49; Donchak Br. at 37.) 

Instead, they submit that “mixed motive” instructions under § 

3631 are improper, and ask this Court to vacate the conviction 

under § 3631 and remand for a new trial. 

Where, as here, a criminal defendant argues that the

district court’s jury instructions misstated the applicable law, 
17

our review is plenary. United States v. Dobson, 419 F.3d 

231, 236 (3d Cir. 2005); United States v. McLaughlin, 386 

F.3d 547, 552 (3d Cir. 2004). Where the language of a 

district court’s given instruction is legally sound and the court

has additional proposed language by a party before it, 

“[r]efusal to give a proposed instruction is reversible error 

only if the omitted instruction is correct, is not substantially 

covered by other instructions, and is so important that its 

omission prejudiced the defendant.” United States v. Urban, 

404 F.3d 754, 779 (3d Cir. 2005) (quoting United States v. 

Davis, 183 F.3d 231, 250 (3d Cir. 1999) (internal quotations 

omitted). 

Thus, we are presented with two questions: first, 

whether the District Court’s “mixed motive” instruction to the 

jury “misstated the applicable law” under § 3631; second, 

whether the District Court abused its discretion in refusing to 

include the Defendants’ proposed language purporting to 

define or underscore the meaning of the word “because” 

under § 3631. 

A.

Under § 3631, a party may be convicted where he, “by 

force or threat of force willfully injures, intimidates or 

interferes” with–

(a) any person because of his race, color, 

religion, sex, handicap * * *, familial status 

* * *, or national origin and because he is or 

has been selling, purchasing, renting, 

financing, occupying, or contracting or 

negotiating for the sale, purchase, rental, 

financing or occupation of any dwelling, or 
18

applying for or participating in any service, 

organization, or facility relating to the 

business of selling or renting dwellings; or

(b) any person because he is or has been, or in 

order to intimidate such person or any other 

person or any class of persons from–

(1) participating, without discrimination on 

account of race, color, religion, sex, 

handicap * * *, familial status * * *, or 

national origin, in any of the activities, 

services, organizations or facilities described 

in [§ 3631(a)]; or

(2) affording another person or class of 

persons opportunity or protection so to 

participate[.]

42 U.S.C. § 3631(a), (b) (emphasis added). The statute, 

passed in 1968 as part of a suite of legislation designed to 

address racial discrimination at the height of the Civil Rights 

Movement, was intended to target the various means by 

which certain classes of individuals were discriminated 

against in renting, purchasing or owning property in certain 

neighborhoods. S. Rep. No. 90-721 (1967), reprinted in 1968 

U.S.C.C.A.N. 1837, 1842-43. It was also meant to provide a 

gap-filling measure for enforcing individual rights to housing, 

free of discrimination or intimidation, where Congress 

believed state law had fallen short or had abdicated 

responsibility altogether. Id. Under § 3631, when an 

individual commits such an act of intimidation by inflicting 

physical injury on another person, he or she is subject to 
19

criminal prosecution and a sentence of up to ten years. Id. at 

1841.

We begin by noting that the District Court’s 

instructions to the jury on the elements of proof required 

under § 3631 restate—almost verbatim—the language of the 

statute itself. To the extent the instructions employ the 

language of § 3631, they do not, of course, misstate the law. 

The relevant question, then, is whether the District Court’s 

statement that “the presence of other motives, such as 

personal dislike, anger or revenge does not make the conduct 

any less a violation of the statute” in some way misstates 

what § 3631 requires.

This Circuit has not previously examined or 

determined the extent to which a showing of mixed motives is 

legally sufficient to support a conviction under § 3631. The 

opinions of our sister circuits, however, provide ample 

support for the proposition that a conviction based on “mixed 

motives” falls well within the reach of § 3631, so long as the 

evidence is sufficient to show that the defendant’s actions 

were taken because of the defendant’s animus toward a 

protected class and on account of an intent to intimidate a 

member of that protected class of individuals from exercising 

his housing rights under the Act. Since the Fifth Circuit’s 

decision in United States v. Johns, 615 F.2d 673 (5th Cir. 

1980), courts have been in general agreement that, under § 

3631, the “presence of other motives . . . does not make [a 

defendant’s] conduct any less a violation of § 3631,” id. at 

676.

Most recently, in United States v. Craft, the Seventh 

Circuit upheld the conviction under § 3631 of a defendant 

who had committed arson at several structures in South Bend, 
20

Indiana—only two of which were homes owned by 

individuals who fell within a protected class under § 3631. 

The defendant challenged the sufficiency of the evidence 

supporting his convictions under § 3631, arguing in part that 

he had ulterior motives for burning the houses. One of the 

resident-victims, a black man, owed him money, and the 

defendant argued that that was the reason he had burned the 

victim’s house. The Seventh Circuit found this argument 

unavailing, stating that the government was not required to 

prove that racial animus was the defendant’s “sole 

motivation.” “Rather, it was only required to prove that the 

victims’ race or ethnicity partially motivated” the crimes. 

484 F.3d 922, 926 (7th Cir. 2012) (citing United States v. 

Magleby, 241 F.3d 1306, 1310 (10th Cir. 2001)). Craft was 

consistent with language from the Seventh Circuit’s earlier 

opinion in United States v. Hartbarger, in which that court 

noted, in a footnote, that the district court had correctly 

instructed the jurors in a § 3631 case that “defendants could 

be found guilty even if they had mixed motives in committing 

the act.” 148 F.3d 777, 784 n.6 (7th Cir. 1998), overruled on 

other grounds by United States v. Colvin, 353 F.3d 569, 576 

(7th Cir. 2003). Though the defendants’ appeal in 

Hartbanger was not itself a challenge to the district court’s

“mixed motives” instruction, that court’s language is

nonetheless telling, given that the Hartbarger defendants had 

argued earlier in the proceedings that they had burned a cross 

in the victim’s yard for personal reasons—a previous verbal 

altercation with him—and not because of his race. 148 F.3d 

at 779, 784 n.6; see also Magleby, 241 F.3d at 1310 

(approving instruction in a § 3631 case, challenged on other 

grounds, in which the district court stated that “[i]t does not 

matter that the defendant may have had more than one motive 
21

in performing the act as long as . . . race was one of his 

motives”). 

Because these cases involve challenges to the 

sufficiency of evidence under a conviction under § 3631 they 

are demonstrative of what passes legal muster under that 

provision. Donchak and Piekarsky concede that the reasoning 

of these cases would foreclose their line of argument, but urge 

us to disregard them because those holdings, they argue, 

“ignore the plain text of § 3631.” (Piekarsky Br. at 49; 

Donchak Br. at 31.) We disagree. 

Indeed, in analyzing similar text in an analogous 

context, our own case law makes clear that a “mixed motive” 

jury instruction sets forth the correct legal standard for crimes 

involving a specific intent to deprive a victim of a protected 

right. See United States v. Ellis, 595 F.2d 154 (3d Cir. 1979). 

In Ellis, we reviewed jury instructions given regarding 

criminal charges under 18 U.S.C. § 241, which prohibits 

conspiracies undertaken to deprive an individual of his civil 

rights, or “because of his having so exercised the same.” The 

district court in that case refused a proposed defense 

instruction that stated that the intent to deprive the victim of 

his civil rights needed to be the “predominant purpose” of the 

conspiracy. On appeal, we affirmed the district court’s 

decision, noting that the proposed instruction would 

inappropriately invite jurors to override the guiding purpose 

of the legislation—the prevention of constitutional injuries—

by also finding that the parties had some other permissible 

purpose. Ellis, 595 F.2d at 162; see also United States v. 

Johnstone, 107 F.3d 200, 210 (3d Cir. 1997) (approving 

under 18 U.S.C. § 1842 a jury instruction stating it did not 

matter “that a defendant may also have been motivated by 

hatred, anger or revenge, or some other emotion”); cf. United 
22

States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984) 

(upholding mixed motives instruction under 18 U.S.C. § 245 

that stated that “the presence of other motives . . . does not 

make his conduct any less a violation” of the statute); Craft, 

484 F.3d at 926 (stating that, under § 3631, the government 

need only prove that “race or ethnicity partially motivated” 

the crimes).

The Defendants argue that Ellis is inapposite, since the 

defendants in Ellis “did not have ‘mixed motives,’” and 

because the legislation in Ellis is not identically worded to

§ 3631. (Piekarsky Br. at 46; Donchak Br. at 28.) We find 

these arguments unpersuasive. First, the Defendants ignore 

the fact that the statute we analyzed in Ellis does, in part, rely 

on the word “because” in stating the proscribed specific 

intent. An individual violates § 241 when he conspires to 

“injure, oppress, threaten, or intimidate” any person in the 

exercise of his constitutional rights and privileges, “or 

because of his having so exercised the same.” Second, while 

Ellis does not refer to the defendants’ having “mixed 

motives,” specifically, it does concern the defendants’ 

“purpose” in conspiring as they had to violate the victim’s 

constitutional rights. 595 F.2d at 162. The parallel to this 

case is readily apparent: A purpose, like a motive, is “the 

reason for which something is done.” OXFORD ENGLISH 

DICTIONARY (2012); cf. Supp. Append. 121 (Defendants’ 

Proposed Jury Instruction) (proposing the District Court 

define “because” for purposes of § 3631, to mean “by reason 

of,” “for the reason that,” and “due to”). 

Thus, though the language of the statutes may differ,

we consider our interpretation under § 241 to be instructive in 

this case. To that end, the import of Ellis is the degree to 

which it underscores this Circuit’s concern that the general 
23

purpose of such statutes—those designed to deter and punish 

acts taken with the specific intent of depriving a victim of a 

federally recognized right—not be undermined by the ease 

with which a defendant can argue that he had some additional

motive or purpose in acting as he did. This is a reading that is 

reinforced by the plain text of § 3631 and the legislative 

purpose in its enactment.

The Defendants’ argument that the District Court 

impermissibly diluted the legal standard under § 3631 

necessarily relies on the implicit proposition that the statute 

uses the word “because,” under its “ordinary meaning” 

(Piekarsky Br. at 49; Donchak Br. at 31-32), to mean 

“primarily,” or even “singularly.” To be sure, the Defendants 

are correct that a word in a statute, unless otherwise defined, 

is understood by its ordinary meaning. However, we decline 

to accept the Defendants’ argument that the ordinary meaning 

of the word “because” carries the weight that they would 

assign to it. 

The word “because” is defined to mean “for the reason 

that,” “on account of,” and “by reason of.” OXFORD ENGLISH 

DICTIONARY (2012). Those meanings do not, necessarily, 

connote exclusivity or predominance. Nor, viewing the word 

in the context of the statute as a whole, are we compelled to 

adopt such a reading. As § 3631 itself makes clear, 

something can be done “because of” multiple reasons. See § 

3631 (premising violation on actions taken “because of” race 

and “because of” occupancy). Certainly, then, “because” 

cannot connote exclusivity.

Indeed, the inclusion of such language would threaten 

to limit drastically the availability of the protections afforded 

by § 3631—a result not intended by Congress in the drafting 
24

of this statute. Rather, in passing the legislation at hand, 

Congress intended to “broadly prohibit” the use of violence as 

a means of intimidating individuals from exercising their 

federal rights, and to create a powerful, useful federal tool for 

filling in state-law shortcomings in this area. See S. Rep. No. 

90-721, 1968 U.S.C.C.A.N. at 1837-45. It did so by targeting 

and criminalizing actions taken with a very specific 

proscribed intent: the intent to injure, intimidate or interfere 

with a person’s exercise of his or her rights, under the Fair 

Housing Act, because of that person’s race, color, religion, 

sex, handicap, familial status or national origin. Where a 

jury, presented with all the evidence, determines that that 

specific intent is demonstrated beyond a reasonable doubt in 

the case before it, the dictates of § 3631 have been met and a 

conviction is appropriate. See Johns, 615 F.2d at 675 (“The 

presence of other motives,” so long as the proscribed intent is 

found, “does not make [the] conduct any less a violation of 42 

U.S.C. § 3631.”). 

The Defendants argue that this reading of § 3631 is too 

broad—that, under this construction, “a single racial 

epithet . . . uttered in the anger and intemperate speech of an 

entirely random street fight, caused by an insult or by merely 

personal animus, could become the basis for a conviction 

under the Fair Housing Act.” (Piekarsky Br. at 50; Donchak 

Br. at 32-33.) Of course, as the facts above demonstrated, 

this is not a case involving “a single racial epithet.” 

Bearing in mind that the issue before us concerns the 

legality of mixed motive instructions given to the jury, which 

considers their application in light of the evidence and the 

arguments offered by both the prosecution and the defense, 

we are confident that—even under a “mixed motives” jury 

instruction—a single untoward comment would not yield 
25

such a heavy handed result. Nor is it likely that a single racial 

epithet, taken alone, would be sufficient to demonstrate that 

the Defendants’ conduct was motivated by an intent to 

discriminate on the basis of the victim’s attempt to peacefully 

reside in a given neighborhood. 

As we have said, Congress has criminalized certain 

conduct, taken with specifically proscribed intent, through its 

enactment of § 3631. As other Circuits’ cases dealing with § 

3631 make clear, at trial, a defendant has the opportunity to 

present his defense and to demonstrate to the jury that, 

whatever the facts, he did not hold this specific intent at the 

time of the alleged crime. It is the jury that is tasked with 

evaluating the facts and determining whether § 3631 applies, 

or whether a defendant’s use of racial epithets or his 

personally held biases are instead merely incidental to his 

other motivations for acting as he did. Our holding here—

which merely limits the word “because” to what we take to be 

its plain, ordinary, congressionally intended meaning—has 

not so “diluted” the language of that statute so as to render 

that evaluation meaningless.

B.

We next consider whether, despite the legal soundness 

of its own instructions, the District Court abused its discretion 

in declining to include the language regarding the meaning of 

the word “because,” proposed by the Defendants. As 

previously stated, a district court abuses its discretion in 

refusing to give a proposed instruction only insofar as the 

proposed language (1) is correct; (2) is not substantially 

covered by other instructions; and (3) is so important that its 

omission prejudices the defendant. Urban, 404 F.3d at 779 

(citations omitted). Applying this standard, we conclude that 
26

the District Court did not abuse its discretion in rejecting the 

Defendants’ proposed additional language. 

Aside from requesting that the Court remove the 

mixed motives language from the jury instructions—language 

which we have found to be a correct statement of the law 

under § 3631—the Defendants’ also requested that the Court 

explain the definition of the word “because” for the jury. As 

the Defendants repeatedly point out, “because” is a word with 

an ordinary meaning. As a result, the addition of a clarifying 

definition—as proposed by the Defendants—was not 

necessary to the jury’s understanding of the instructions it 

received. To the extent that inclusion of the word “because” 

was intended to instruct the jury that “because” means “only” 

or “predominantly,” that reading is in conflict with the law, 

and the District Court was correct to reject that language. 

III.

In addition to the Defendants’ challenges to the jury 

instructions, Piekarsky also challenges the sufficiency of the 

evidence supporting his conviction under § 3631.7

 

7 Donchak does not raise this challenge on appeal. 

 “The 

burden on a defendant who raises a challenge to the 

sufficiency of the evidence is extremely high.” United States 

v. Lore, 430 F.3d 190, 203 (3d Cir. 2005) (quotation marks 

omitted). Where, as here, a defendant has preserved the issue 

for appeal, we review the evidence in the light most favorable 

to the Government. United States v. Riley, 621 F.3d 312, 329 

(3d Cir. 2010). We afford great deference to, and draw all 

reasonable inferences in favor of, the jury’s verdict. Id.
27

Piekarsky argues that the evidence presented at trial 

was insufficient to establish a violation of § 3631 because (1) 

Ramirez was an undocumented alien, had “no right to be in 

the United States” and thus “[did] not have a federally 

protected right to housing in the United States;” and (2) 

Piekarsky did not know that Ramirez “occupied or intended 

to occupy a dwelling in Shenandoah.”8

On the law alone, we find these arguments wanting. 

The text of § 3631(a) and (b)—the provisions under which

the Defendants were charged—contains no requirement that 

the victimized individual be a citizen of the United States or 

otherwise lawfully residing here. Instead, both (a) and (b) 

criminalize conduct against “any person because of his race, 

color, . . . or national origin. Id. This language rests in stark 

contrast to the text of § 3631(c), which does contain an 

explicit limitation on the scope of its protection, reaching 

only “any citizen” who exercises, or aids others in the 

exercise of, their federally guaranteed housing rights. We 

find this omission fatal to Piekarsky’s argument. See Prestol 

Espinal v. Att’y General, 653 F.3d 213, 223-24 (3d Cir. 2011) 

(“[W]here Congress ‘includes particular language in one 

section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally 

 (Piekarsky Br. at 29-

30.) 

 

8 The defendants also raised this issue in a joint pretrial 

motion to dismiss this count of the indictment, arguing that it 

“fail[ed] to allege that they knew [Ramirez] occupied a 

dwelling in Shenandoah.” (Append. 18 (District Court 

Pretrial Memorandum, Aug. 11, 2010).)
28

and purposely in the disparate inclusion or exclusion.’” 

(quoting Russello v. United States, 464 U.S. 16, 23 (1983)).

As to whether the evidence was sufficient to 

demonstrate that Piekarsky knew that Ramirez “occupied or 

intended to occupy” a residence in Shenandoah, this argument 

is similarly unavailing. As the language of the statute makes 

clear, the victimized individual need not be a resident or 

future resident of a given neighborhood in order for the 

protections of § 3631 to apply. Rather, under § 3631(b), it is 

enough that an individual is victimized “in order to intimidate 

. . . any other person or any class of persons” from exercising

their federally guaranteed housing rights. 

Thus, under § 3631(b), all the Government needed to 

prove at trial was that Ramirez was injured because the 

Defendants intended to send a message to others that they 

were not welcome to live in Shenandoah on account of their 

“race, color . . . or national origin.”9

 

9 Piekarsky argues in his reply that, whatever the law under § 

3631, the District Court itself stated that the government was 

required to show that Piekarsky knew or believed that 

Ramirez was a resident of Shenandoah, because the District 

Court said, during jury instructions, that § 3631 “requires 

proof that Mr. Piekarsky and/or Mr. Donchak intended to 

intimidate or interfere with Luis Ramirez because he was 

occupying a dwelling in Shenandoah.” (Append. 992-95.) 

However, reading the instructions in their entirety, it is 

sufficiently clear that the District Court provided an accurate 

statement of the law as we have described it. Shortly after 

making the statement relied on by Piekarsky on appeal, the 

District Court clarified that the “government must simply 

 Cf. United States v. 
29

Vartanian, 245 F.3d 609, 615 (6th Cir. 2001) (stating broad 

congressional intent to prevent housing discrimination and 

intimidation, generally). Under this reading of § 3631, and 

viewing the evidence in the light most favorable to the 

Government, we have no trouble concluding that the evidence 

before the jury was sufficient to support the guilty verdict 

under § 3631. 

To be sure, this case lacks the explicit and overt 

reliance on the racially charged symbols—such as crossburning—that are so immediately evocative of an intent to 

intimidate an individual on account of his race, his color or 

his national origin. See, e.g., Magleby, 241 F.3d at 1313 

(describing burning crosses as “symbols of racial hatred”). 

Similarly, the nexus to housing issues or housing rights is less 

explicit here than it is in cases involving crosses burning in 

front yards or targeted acts of arson. See, e.g., Craft, 484 

F.3d at 926. However, such explicit evidence is not required 

to support a finding of specific intent. 

In cases involving a necessary finding of specific 

intent, a jury may draw inferences of subjective intent from 

evidence of the defendant’s objective acts, and from 

circumstantial evidence. Riley, 621 F.3d at 333. Though a 

 

show that Mr. Piekarsky . . . intended to do something that 

would have the effect of interfering with Mr. Ramirez’s right 

to occupy a dwelling in Shenandoah.” It later described the 

relevant intent as an intent to interfere with the rights of Mr. 

Ramirez and “other Latino persons” to “live in Shenandoah 

free of racial intimidation.” (Id.)
30

defendant may deny having the requisite intent, and may offer 

evidence suggestive of that argument, the jury may weigh all 

the evidence before it and choose to disbelieve him if “his 

words and acts in light of all the circumstances make his 

explanation seem improbable.” Magleby, 241 F.3d at 1312

(quotation marks omitted).

At trial, the government presented evidence that, on 

the night of July 12, 2008, the Defendants and their friends 

hurled an array of racially charged comments at Ramirez, 

repeatedly calling him a “spic” and, alternately, a “fucking 

spic,” and a “fucking Mexican.” Prior to the physical beating 

of Ramirez and immediately after, Scully—a member of the 

group was heard to say, “This is Shenandoah. This is 

America. Go back to Mexico.” (Append. 150, 228.) During 

the fight, Scully also turned and said, “Go home you Mexican 

motherfucker.” (Append. 386-87.) The same individual told 

Ramirez that Shenandoah was “our town” and that Ramirez 

didn’t “belong” there. (Append. 387.) Finally—and in light 

of the extensive amount of violence and racial epithets which 

preceded it—after the beating had ended, and Ramirez lay 

unconscious and convulsing on the ground, Piekarsky yelled, 

“Tell your fucking Mexican friends to get the fuck out of 

Shenandoah, or you’re going to be fucking laying next to 

him.”10

 

10 Walsh testified at trial that it was Scully who made this 

comment. (Append. 645.) Eileen Burke, a neighbor who 

witnesses the fight, testified that it was Piekarsky. (Append. 

325.)

 (Append. 325.)
31

Viewing this evidence—coupled with the other 

testimony about the Defendants’ general dislike of Hispanic 

or Latino individuals moving into Shenandoah, supra—in the 

light most favorable to the government, we conclude that a 

reasonable juror could rationally conclude that the nature of 

the beating of Luis Ramirez, the extent of the violence 

involved in this case, and the gratuitous nature of the racial 

epithets flung about during the beating—both at Ramirez, and 

at his friend, Victor Garcia—were, taken together, indicative 

that Donchak and Piekarsky intended to injure Ramirez with 

the purpose of intimidating him, or other Hispanic or Latino 

individuals, from residing in Shenandoah. 

Piekarsky was afforded the opportunity, at trial, to 

present his defense and to show the jurors that this was

merely a case—in the words of Piekarsky’s attorney—of “a 

single racial epithet . . . uttered in the anger and intemperate 

speech of an entirely random street fight.” (Piekarsky Br. at 

50.) In light of the other evidence before them, the jurors 

were not convinced. Instead, the jury found that the specific 

intent elements of § 3631 were met and it issued a guilty 

verdict. We see no basis to upset that finding.

IV.

Regarding their Double Jeopardy claim, the 

Defendants argue that, because they “were previously 

charged, tried, and acquitted of all but the Simple Assault 

[charge] in Schuylkill County court on the same incident,” the 

federal charges against them were barred by the Double 

Jeopardy clause of the United States Constitution. (Piekarsky 

Br. at 18; Donchak Br. at 22.) Because the doctrine of Dual 

Sovereignty applies to this case and forecloses the 

Defendants’ argument on appeal, we affirm the District 
32

Court’s determination that Double Jeopardy did not bar the 

federal prosecution of this case. 

The Double Jeopardy clause of the Fifth Amendment 

to the United States Constitution provides that no person shall 

“be subject for the same offence to be twice put in jeopardy 

of life or limb.” U.S. CONST. amend. V. Importantly, 

however, there are limits to the reach of the protection 

afforded by this language. As is relevant to this case, under 

the doctrine of Dual Sovereignty, a state prosecution does not 

bar a subsequent federal prosecution for the same conduct. 

United States v. Gricco, 277 F.3d 339, 352 (3d Cir. 2002) 

(citing Abbate v. United States, 359 U.S. 187, 194 (1959); 

Bartkus v. Illinois, 359 U.S. 121, 137 (1959); United States v. 

Lanza, 260 U.S. 377, 382 (1922)). The doctrine, articulated 

by the Supreme Court in Bartkus v. Illinois and Abbate v. 

United States, is a recognition of the fact that the states and 

the federal government are separate sovereigns, with distinct 

interests in criminalizing and prosecuting certain conduct. 

The Defendants concede that, on its face, the doctrine 

of Dual Sovereignty applies to bar this line of argument. 

Seeking to avoid this result, they urge this Court to adopt as 

law and apply what some have called the “Bartkus exception” 

to the Dual Sovereignty rule. That exception, to the extent it 

has been recognized by federal courts, stems from language

in which the Supreme Court “alluded to the possibility that 

dual federal and state prosecutions might run afoul of the 

general rule affirming such prosecutions if one authority was 

acting as a surrogate for the other, or if the state prosecution 

was merely ‘a sham and a cover for a federal prosecution.’” 

United States v. Berry, 164 F.3d 844, 846 (3d Cir. 1999) 

(quoting Bartkus, 359 U.S. at 123-24).
33

As we stated in 1999, in Berry, “[a]lthough we have 

previously recognized the potential existence of an exception 

to the dual sovereignty rule under Bartkus, we have never 

applied the exception to overturn a second state or federal 

prosecution.” Id. at 847 (citation omitted). Nor do we see 

reason to do so here. Though the federal and state authorities 

appear to have been cooperative with each other in 

conducting their investigations, and in sharing resources for

the interviewing of witnesses, the Defendants have failed to 

point this Court’s attention to any evidence, beyond mere 

supposition, that the state authorities were puppets or 

surrogates for the federal authorities in this case. Nor have 

the Defendants presented this Court with anything to support 

their claim that the state trial was a mere “sham,” conducted 

in anticipation of the federal proceedings. In this case, the 

state and federal government each decided to prosecute the 

Defendants based on facts implicating its own valid interests

as sovereign—Pennsylvania’s in criminalizing ethnic 

intimidation under 18 Pa. C.S. § 2710; the United States in 

prosecuting criminal housing discrimination under 42 U.S.C. 

§ 3631. Viewing the unfolding of these proceedings in their 

entirety, the state trial “simply cannot be considered ‘a sham 

and a cover’ for a federal prosecution.” See Berry, 164 F.3d 

at 847; see also United States v. Pungitore, 910 F.2d 1084, 

1106-07 (3d Cir. 1990) (concluding that the fact that “there

was a considerable amount of federal-state cooperation” did 

not, alone, create a double jeopardy problem). We thus

affirm the District Court’s conclusion that Double Jeopardy 

did not bar the subsequent federal prosecution of this case.

V.

Having carefully considered the Defendants’ various 

remaining arguments, we find them to be without merit. We 
34

therefore affirm the final conviction, judgment, and sentence 

of the District Court, in all respects.