In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1654

AMYN KAPADIA,

Plaintiff-Appellant,

v.

RODNEY L. TALLY,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 7929--David H. Coar, Judge.


Argued November 30, 1999--Decided October 12, 2000



  Before MANION, KANNE and ROVNER, Circuit Judges.

   ROVNER, Circuit Judge. Amyn Kapadia was
convicted in the Circuit Court of Cook County,
Illinois of burglary and arson of a Jewish
community center. The trial court judge meted out
the harshest sentence possible under state law,
a fourteen year term of imprisonment, after a
courtroom deputy testified that Kapadia uttered
a number of anti-Semitic slurs on his way out of
court after being convicted. Kapadia complains
that enhancing his sentence because he professes
vile beliefs violates his First Amendment rights.
However, the trial court enhanced Kapadia’s
sentence because of his poor rehabilitative
potential and his future dangerousness and not
because of his anti-Semitic speech, and we
therefore affirm the district court’s denial of
Kapadia’s petition for habeas corpus.
I.

  We take the facts as the trial court found them
to be. In November 1993, Amyn Kapadia and Jason
Wiederhold burglarized and set fire to the
Friends of Refugees of Eastern Europe center (the
"F.R.E.E. center"). The F.R.E.E. center was a
Jewish Orthodox organization that provided
services to recent Russian Jewish immigrants. In
addition to a reception area, kitchen, business
offices, vocational offices and a study, the
center housed a small synagogue where religious
services were held. After a bench trial, the
court found both defendants guilty and set a date
for a sentencing hearing. On his way out of the
courtroom, Kapadia said to Deputy Joseph Bennett,
"You can tell the Judge for me . . . that he’s a
bitch and fuck the Jews." Later that day, while
in lockup, Kapadia asked Deputy Bennett whether
"that Judge is a Jew, too?" and then answered his
own question by stating, "I’ll bet he is that
fucking schmuck." At another time, Deputy Bennett
also heard Kapadia mutter, "Those fucking Jews."
Another deputy also heard Kapadia say, "Fucking
Jews, man," as he was being escorted into lockup
after a court date in his case. Deputy Bennett
passed these remarks on to the trial judge before
the sentencing hearing, and the trial judge told
the Deputy to inform both the prosecution and the
defense about the remarks. At the sentencing
hearing, the prosecution urged the judge to
sentence Kapadia to "substantial penitentiary
time," at least in part because the crime was
committed against a Jewish community organization
that aided Russian immigrants who came to the
United States to escape persecution only to "run
into the likes of Amyn Kapadia." R. 1, Ex. C at
A-10. Because the prosecution raised this issue,
the court asked the parties whether either
intended to call Deputy Bennett as a witness.
Both the defense and the prosecution declined the
court’s invitation. The trial judge then stated,
"The record should reflect then that I will not
consider either the remark about me or about the
Jewish community in aggravation. I’ll proceed
strictly on the basis of what is in the record."
R. 1, Ex. C at A-11.

  The trial court then solicited argument
regarding mitigation from Kapadia’s counsel.
Kapadia’s counsel stated:

Judge, by way of argument, I object strenuously
for the state’s attorney trying to introduce race
into this argument. There has been absolutely no
suggestion during the trial, the conduct of the
trial, the conduct of the people involved in the
trial, that the fact that this was a Jewish
synagogue had anything to do with anything,
especially the conduct of my client.

R. 1, Ex. C at A-11. The trial judge replied:

You’re absolutely right. That’s why Deputy
Bennett has to be here. Order of court, this
matter is put over to September 23rd. Subpoena
Deputy Bennett. Your point is well-taken. It’s
important aggravating information. You, of
course, were informed by Deputy Bennett, because
I told him to inform you, so you are not unaware
of this. But based upon that information that I
received that is of record, I have to dispute
what you have to say. Since I’m actually aware of
that, I ought to be also legally aware of that.

R. 1, Ex. C at A-11 through A-12. At the
continued sentencing hearing, Deputy Bennett
testified to the anti-Semitic remarks Kapadia
uttered at various times. The sentencing judge
then heard the argument of counsel and remarked
that he had been called more names than any other
professional except a tax collector. He
continued:

What troubles me, of course, is the vitriol
directed towards the group that also happens to
be the victims. Talk about the larger group, the
societal group, East European Jews who are the
victims in this case. I did take the comments
into consideration because one of the things I
have to consider is the possibility of
reformation of the defendant. How likely is this
defendant to be restored to useful citizenship.

R. 1, Ex. C at C-25. The court went on to comment
on the lessons of history, and the anti-Semitic
hooliganism that preceded Krystalnacht, the
"night of broken glass" in 1938 when 1700
synagogues and Jewish-owned businesses were
destroyed by mobs led by Nazi party members,
leading to the deaths of a very large number of
Jewish individuals. The court then remarked:

I take these matters into very, very serious
consideration in the case of Mr. Kapadia,
therefore, because his virulent anti-Semitism is
indicative of the fact [that] he is not likely to
change his ways. He is not likely to become a
productive member of society. So, it’s certainly
a[n] aggravating factor.

R. 1, Ex. C at C-27 through C-28. The court then
sentenced Kapadia to a fourteen year term of
imprisonment, the longest term allowed under
Illinois law for burglary and arson. The court
sentenced Wiederhold to a five year term of
imprisonment, reasoning that his conduct was
caused at least in part by his association with
"the tumultuous and virulent Mr. Kapadia," and
that he was therefore less culpable than Kapadia,
and could conceivably be re-integrated into
society. R. 1, Ex. C at C-28.

  Kapadia appealed his sentence through the
Illinois courts. The Appellate Court affirmed,
and the Illinois Supreme Court declined to hear
the case. Kapadia then filed a petition for a
writ of habeas corpus in the district court,
contending that enhancing his sentence on the
basis of his anti-Semitic remarks was
unconstitutional because the sentencing judge
made no finding tying the remarks to his
motivation to commit the crime. He argued that
the trial court violated his First Amendment
rights when the court used his protected speech
as evidence of character and rehabilitative
potential. The district court denied his petition
and he appeals.

II.

  Under the Anti-terrorism and Effective Death
Penalty Act ("AEDPA"), we defer to state court
merit adjudications. Sanchez v. Gilmore, 189 F.3d
619, 623 (7th Cir. 1999), cert. denied, 120 S.
Ct. 1724 (2000). To obtain habeas corpus relief
under the AEDPA, Kapadia must show that the state
court determinations under review are either
contrary to or employ an unreasonable application
of federal law as determined by the United States
Supreme Court. Id. Kapadia may also attack the
state court’s adjudication on the ground that it
is an unreasonable determination of the facts,
although we presume state court factual findings
are correct unless the petitioner rebuts the
presumption with clear and convincing evidence.
Id. We review state court legal conclusions de
novo, and we apply that same standard to mixed
questions of law and fact. Id. Kapadia complains
that the trial court did not tie his anti-Semitic
statements to his crime and therefore punished
him solely for expressing an unpopular opinion.
Because Kapadia must show that the state court
determinations under review are either contrary
to or employ an unreasonable application of
federal law as determined by the United States
Supreme Court, we turn first to the Supreme Court
cases on which Kapadia relies.

A.
  In Barclay v. Florida, 463 U.S. 939, 948-51
(1983), a plurality of the Court rejected a
capital defendant’s claim that the sentencing
judge had improperly injected a non-statutory
aggravating factor of racial hatred into his
sentencing consideration. Barclay belonged to a
group that called itself the Black Liberation
Army, a group that desired to start a race war.
Together with four other men, Barclay murdered a
white man and pinned a racist note to his body
with a knife. The sentencing judge found, among
other things, that the murder had been especially
heinous, atrocious or cruel, an aggravating
factor under Florida law. The judge compared
Barclay’s conduct to that of the Nazis in
perpetuating a race war, and commented
extensively on his own experiences on the
battlefields of Europe. A plurality of the Court
affirmed that the Constitution did not prohibit
the trial judge from taking into account the
elements of racial hatred in the murder,
particularly because Barclay’s desire to start a
race war was relevant to a number of statutory
aggravating factors. Barclay, 463 U.S at 949-50.

  The Court expounded on this theme in Dawson v.
Delaware, 503 U.S. 159, 166-69 (1992), another
capital murder case involving a defendant who
belonged to a racist organization. After escaping
from prison, Dawson murdered a white woman in her
home in the course of stealing her money and her
car. During the sentencing phase of the trial,
the prosecution sought to admit into evidence
Dawson’s association with the Aryan Brotherhood,
and the trial court entered a stipulation (over
Dawson’s continuing objection) describing the
Aryan Brotherhood as a white racist prison gang
that originated in California in response to
other gangs of racial minorities. The stipulation
stated that separate groups calling themselves
the Aryan Brotherhood existed in many state
prisons including Delaware. The jury also learned
that Dawson had the words "Aryan Brotherhood"
tattooed on his hand. After hearing other
aggravating evidence, the jury recommended a
death sentence for Dawson, a recommendation the
trial court was bound to impose. The Supreme
Court of Delaware affirmed the sentence,
reasoning that allowing evidence of character
where character is a relevant inquiry was
distinguishable from punishing a person for
expressing his views. See 503 U.S. at 163. The
United States Supreme Court acknowledged that it
had in Barclay upheld the consideration of
evidence of racial intolerance and subversive
advocacy where that evidence was relevant to the
issues involved. Dawson, 503 U.S. at 164. The
Court also reaffirmed its holding in United
States v. Abel, 469 U.S. 45 (1984), that the
Constitution does not erect a per se barrier to
the admission of evidence concerning one’s
beliefs and associations at sentencing simply
because those beliefs and associations are
protected by the First Amendment. Dawson, 503
U.S. at 165. The Court drew the line in Dawson’s
case, however, because the information presented
to the jury at Dawson’s trial was so narrow as to
be irrelevant to any legitimate sentencing issue.
The Court stated that if other credible,
admissible evidence had been introduced to show,
as the prosecution originally intended to
demonstrate, that the Aryan Brotherhood was a
white racist prison gang associated with drugs
and violent escape attempts, and that advocates
the murder of fellow prisoners, it would be a
different case. In the narrow form in which the
information was introduced, the Court held, it
was irrelevant to the sentencing proceeding
because it was not, for example, tied in any
manner to the murder of a white woman. The crime
itself did not involve elements of racial hatred.
Dawson, 503 U.S. at 166.
  Because the evidence of membership proved
nothing more than Dawson’s abstract beliefs, the
Court held that the admission of that evidence
violated Dawson’s First Amendment rights. 503
U.S. at 167. Had the prosecution proved that the
Aryan Brotherhood committed unlawful or violent
acts, or had even endorsed such acts, the
evidence might have been relevant to prove
aggravating circumstances, and thus would not
have been barred by the First Amendment. "In many
case, for example, associational evidence might
serve a legitimate purpose in showing that a
defendant represents a future danger to society."
503 U.S. at 166. Membership in an organization
that endorsed the killing of an identifiable
group, thus, would be relevant to a jury’s
inquiry into whether the defendant will be
dangerous in the future. Id. The Court rejected
the government’s argument that membership in the
group showed Dawson’s "character," a relevant
sentencing factor under Delaware law. Without
evidence showing more than abstract beliefs, the
Court found that recasting the evidence as
relevant to "character" could not save it from
First Amendment scrutiny. The Court concluded
that the First Amendment prevents a state "from
employing evidence of a defendant’s abstract
beliefs at a sentencing hearing when those
beliefs have no bearing on the issue being
tried." 503 U.S at 168.

  The Court considered a slightly different
permutation of this theme in Wisconsin v.
Mitchell, 508 U.S. 476 (1993). There the Court
held that a penalty enhancement based on the
defendant’s purposeful selection of his victim on
account of the victim’s race was not prohibited
by the First or the Fourteenth Amendments.
Mitchell was part of a group of young black men
and boys who had become agitated during a
discussion of a movie that contained a scene in
which a white man beat a black youth. Following
this discussion, Mitchell instigated an attack on
a white youth who happened to walk past the
group. The group beat the white youth severely,
rendering him unconscious and in a coma for four
days. A Wisconsin statute allowed an enhancement
to a sentence for aggravated battery when the
defendant intentionally selected the victim
because of race, religion, color, disability,
sexual orientation, national origin or ancestry.
Mitchell challenged the enhancement on the ground
that it violated his First Amendment rights by
punishing him for his thoughts. The Wisconsin
Supreme Court agreed that the statute punished
what it deemed to be offensive thought because
the statute punished the motive behind the
selection of the victim, and therefore held the
statute unconstitutional. The United States
Supreme Court acknowledged that the statute
punished the same crime differently when the
victim was selected based on his or her race or
other protected status, and that the statute
enhanced the penalty based solely on the
defendant’s discriminatory motive in selecting
the victim. The Court noted that motive has long
been held to be a relevant factor in determining
the length of a sentence, but that abstract
beliefs alone may not be taken into consideration
by a sentencing judge. Mitchell, 508 U.S. 487.

  The Court upheld the Wisconsin statute because
the legislature believed that bias-inspired
conduct inflicted greater individual and societal
harm. For example, such crimes are more likely to
provoke retaliatory crimes, inflict distinct
emotional harms on their victims, and incite
community unrest. Mitchell, 508 U.S. at 487-88.
The State’s desire to redress these perceived
harms provides an adequate explanation for its
penalty-enhancement provision over and above mere
disagreement with offenders’ beliefs or biases.
As Blackstone said long ago, "it is but
reasonable that among crimes of different natures
those should be most severely punished which are
the most destructive of the public safety and
happiness."

Mitchell, 508 U.S at 498 (citing 4 W. Blackstone,
Commentaries, at 16). The Court concluded that
the First Amendment does not prohibit the
evidentiary use of speech to establish the
elements of a crime or to prove motive or intent.
508 U.S at 499.

  Kapadia also relies on R.A.V. v. City of St.
Paul, Minnesota, 505 U.S. 377 (1992), a case
invalidating a municipal ordinance that
criminalized as disorderly conduct the placing
upon public or private property of a symbol,
object or graffiti including, among other things,
a burning cross or a Nazi swastika "which one
knows or has reasonable grounds to know arouses
anger, alarm or resentment in others on the basis
of race, color, creed, religion or gender."
R.A.V. was a teenager who placed a burning cross
inside the fenced yard of a black family. The
Court acknowledged that the Minnesota Supreme
Court limited the application of the law to
fighting words that insult or provoke violence on
the basis of race, color, creed, religion or
gender. The Court found that this limitation was
inadequate to save the ordinance because it
discriminated not only on the basis of content
but also on the basis of viewpoint. Fighting
words unrelated to the protected topics remained
unregulated, and placards using fighting words in
support of racial tolerance, for example, were
permissible while opponents of tolerance were not
allowed to speak. R.A.V., 505 U.S. at 391-92.
Fighting words could be restricted, according to
the Court, because it was the non-speech element
of the words, the manner of speech, that such
laws sought to prohibit. This statute failed to
pass muster because it discriminated between
different categories of fighting words based on
content and viewpoint. 505 U.S. at 385-86.

B.

  Kapadia, of course, argues that enhancing his
sentence for his post-trial anti-Semitic
statements more closely tracks the
unconstitutional practices in R.A.V. and Dawson
than the permissible enhancements in Barclay and
Mitchell. Kapadia points to the sentencing
judge’s discussion of his character and
rehabilitation potential as evidence that the
court sentenced him for holding offensive views
rather than for the allowable purpose of
punishing a crime motivated by racial
intolerance. In order to pass muster, according
to Kapadia, the court must first find that
Kapadia’s offensive statements were tied to the
crime in a manner that is relevant to the
sentencing considerations. Kapadia contends he
was punished for his abstract beliefs as in
Dawson rather than because of his motive or
future dangerousness as in Barclay and Mitchell.
Kapadia concedes that had he painted on the walls
of the F.R.E.E. center the same slogans he later
uttered to the deputy, he would not be able to
make a constitutional challenge under the cases
we discuss above. He complains that because the
state court found no religious motivation on his
part in committing the offense, and because the
state court made no specific finding that he
selected the property because of the religious
affiliation of the owners, his case is
distinguished from Barclay. He admits that as
long as motive is being punished, the First
Amendment is not implicated. The state contends
that the court based the enhancement not on
improper considerations but rather on Kapadia’s
criminal history./1 The state also maintains
that Kapadia’s anti-Semitic statements were tied
to his crimes of burglary and arson of a Jewish
community center and therefore the court could
properly use the statements to enhance his
sentence, if for no other reason than because his
statements showed he lacked remorse. With that,
we return to the sentencing court’s statements at
Kapadia’s two sentencing hearings.

  Kapadia’s counsel argued to the court that
there was no evidence that the fact that this was
a Jewish organization had anything to do with
Kapadia’s conduct. The court replied, "You’re
absolutely right. That’s why Deputy Bennett has
to be here." In other words, the court considered
the deputy’s testimony to be evidence of a
connection between Kapadia’s conduct and the
Jewish affiliation of the F.R.E.E. center.
Implicit in the court’s comments is the finding
that Kapadia’s conduct was tied to his anti-
Semitic bias, and that the court wanted the
deputy’s statement on the record to lend support
to that finding. The sentencing judge, after
receiving the deputy’s statement into evidence,
said that he took Kapadia’s comments into
consideration because he believed Kapadia was
less likely to be reformed. He found Kapadia more
dangerous because he held anti-Semitic views and
attacked a Jewish community center. In other
words, because Kapadia held these views and had
committed a bias-motivated crime, there was a
greater probability he would not be
rehabilitated. The timing of Kapadia’s slurs also
played into the sentencing court’s analysis.
Because Kapadia’s remarks came after his
conviction, the sentencing judge was free to
conclude that he lacked remorse and was less
likely to be rehabilitated. This is just another
way of stating that Kapadia presented a threat of
future dangerousness to the community, a proper
consideration under Barclay and Mitchell.
Finally, the court noted the tie between
Kapadia’s behavior and crimes which occurred in
Europe during the rise of the Nazi regime. Under
Mitchell, this was also an appropriate
consideration, not barred by the First Amendment.


  The court’s comparison of Kapadia’s criminal
destruction of the F.R.E.E. center to Nazi
attacks on synagogues removes any doubt that the
court enhanced Kapadia’s sentence because it
believed that Kapadia’s anti-Semitism was tied to
his crime. Unlike the defendants in R.A.V. and
Dawson, Kapadia was not punished for his abstract
beliefs but rather for committing a crime
motivated by bias against the very group of
people he maligned with his hateful invective. He
did not burglarize and set fire to a Walmart, for
example, or some other business with no
particular affiliation, and then utter anti-
Semitic slurs. Indeed, when the police questioned
Kapadia and asked him whether he knew what the
place was that he burglarized, he replied, "I
thought it was an office but I knew there was a
lot of Jewish people in there." R.18, Ex. A. The
fact that he did not spray his slogans on the
walls but rather uttered them after his
conviction is irrelevant. The court was free to
infer from his post-trial statements that he held
the same views at the time of the crime and was
motivated by those views in selecting the victim.
The First Amendment does not bar consideration of
these statements at sentencing when they are
indicative of motive and future dangerousness,
and we think the sentencing court’s comments make
plain enough that it was considering the remarks
as such.

  Our conclusion is bolstered by the findings of
the Illinois Appellate Court, whose
interpretation we owe deference as well. See
People v. Kapadia, 667 N.E.2d 577, 580 (Ill. App.
1 Dist. 1996). That court held that Kapadia’s
statement provided insight into not only
Kapadia’s character but also his lack of remorse
and rehabilitative potential. Lack of remorse and
poor rehabilitative potential are traditionally
very important considerations for any sentencing
judge, and the fact that the court’s analysis of
these factors is based on the defendant’s
otherwise protected speech does not render their
consideration constitutionally infirm. As the
Appellate Court noted, "[R]ead in context, the
court’s remarks at sentencing weighed defendant’s
statements in the context of his attitude towards
the victims, his lack of remorse, and lack of
potential for rehabilitation." 667 N.E.2d at 580.
Nothing in the Constitution prevents the
sentencing court from factoring a defendant’s
statements into sentencing when those statements
are relevant to the crime or to legitimate
sentencing considerations. Because the sentencing
court was not punishing Kapadia for his abstract
beliefs but rather for his concrete application
of those misguided beliefs in criminal activity,
we affirm the judgment of the district court.

AFFIRMED.


/1 Although the sentencing court could have enhanced
Kapadia’s sentence under state law for his
criminal history, there is no indication in the
record that this is what the court actually did.
Because this theory is without support in the
record, we therefore reject the state’s argument
that criminal history was an adequate basis for
the sentence enhancement.




  MANION, Circuit Judge, concurring. I concur with
the court’s decision to affirm the district
court’s denial of Kapadia’s petition for habeas
corpus. But under the circumstances of this case,
there is no need to explore the question of
whether Kapadia was motivated by religious or
national origin bias when he committed the
burglary and arson. Evidence of one’s beliefs and
associations is admissible where it is relevant
to the statutory aggravating factors. Barclay v.
Florida, 463 U.S. 939, 949-50 (1983). Kapadia’s
bias was demonstrated in statements made after
his conviction and before sentencing. As the
trial judge noted, he took the vitriolic comments
into consideration at sentencing because he had
to "consider . . . the possibility of reformation
of the defendant . . . . [H]is virulant
antisemitism is indicative of the fact that he is
not likely to change his ways. He is not likely
to become a productive member of society." R,1,
Ex. C. at C25-28. And as the Illinois appellate
court indicated, this was an appropriate
consideration for sentencing. It concluded that
Kapadia’s racial and religious slurs "provided
insight into defendant’s character, mentality,
attitude, lack of remorse, and rehabilitative
potential." People v. Kapadia, 667 N.E.2d 577,
580 (Ill. App. Ct. 1996). This court’s opinion
notes that nothing in the Constitution prevents
the court "from factoring a defendant’s
statements into sentencing" when those statements
are relevant to legitimate sentencing
considerations. Because these are relevant
factors to consider upon sentencing, it is
unnecessary to explore whether Kapadia was
motivated by religious bias when committing his
crimes.
