Lemrick Nelson, Jr. ("Nelson") and Charles Price ("Price") appeal their convictions and sentences, under 18 U.S.C. § 245(b)(2)(B) for willfully injuring, intimidating, and interfering with Yankel Rosenbaum ("Rosenbaum"), by force and threat of force, because of Rosenbaum's Jewish religion and because Rosenbaum was enjoying use of a Brooklyn city street. Nelson's and Price's primary contentions on appeal are (a) that § 245(b)(2)(B), as applied to them, is unconstitutional because it reaches conduct that lies beyond Congress's powers of regulation, (b) that the evidence presented at trial was in any event insufficient to support the finding that they had the intent § 245(b)(2)(B) requires, and (c) that the district court's open manipulation of the jury selection process to secure a racially and religiously balanced jury resulted in the empaneling of a biased juror and was unconstitutional. In addition, Nelson and Price present several more discrete claims, involving (a) double jeopardy (for Nelson only), (b) aiding and abetting liability (for Price only), and (c) evidentiary rulings, jury instructions, and sentencing decisions of the district court. We conclude that § 245(b)(2)(B) is constitutional as applied to Nelson and Price and that the evidence was sufficient to show that the defendants had the two-fold intent which that statute requires. Nevertheless, we also conclude that the district court committed reversible error in empaneling the jury. Accordingly, we vacate Nelson and Price's convictions and remand the case for a new trial before a properly chosen jury. We do not, given this disposition, decide most of Nelson's and Price's more discrete contentions. We do, however, affirm with respect to Nelson's claims concerning double jeopardy and Price's claims concerning aiding and abetting liability.

Shortly after eight o'clock in the evening on August 19, 1991, a station wagon struck two children in the Crown Heights area of Brooklyn, New York. The driver of the car was Jewish, and both children were African American. A crowd soon gathered at the scene of the accident. As some of its members attempted to aid the injured children, others began to attack the driver of the car.

The first ambulance to reach the scene was from a Jewish hospital and was readily identifiable as such by Hebrew writing on its sides. The driver of the car that had hit the children was treated by personnel from this ambulance, and, at the direction of police officers who had arrived, the ambulance quickly left the scene in order to protect the injured Jewish driver from the angry crowd. Shortly after the ambulance from the Jewish hospital departed, two New York City ambulances arrived at the accident site. Their crews gave medical assistance to the two injured African-American children, and took them to the hospital. Both children had been seriously hurt; one ultimately died.

In the meantime, a crowd of several hundred people (watched over by between seventy and one hundred police officers) had formed in the neighborhood of the accident. Some members of the crowd complained about Jews and the preferential treatment that Jews allegedly received. They cited, as an example of this favored treatment, the fact that the Jewish driver had received medical attention before the African-American children even though the children were more seriously injured. Some members of the crowd began to throw objects.

At about eleven o'clock, a bald, African-American man later identified as defendant Price began addressing the crowd. Price's speech, which was captured on two videotapes (one made by an NBC cameraman covering the incident and the other made by the superintendent of a nearby building), was angry and aggressive and included, according to police and civilian witnesses, the following statements: "[I]f it was a black man that did this they would have been gone to jail instead of being pulled inside of an ambulance for safekeeping." (Trial Tr. ("Tr.") 1573).

"We can't take this anymore. They're killing our children. The Jews get everything they want. The police are protecting them." (Tr. 1369).

"What are we going to do about this? Are we going to take this anymore?" (Tr. 1143).

"Let's get the Jews" and "Eye for an eye. No justice no peace." (Tr. 1692).

In response to Price's exhortations, many people in the crowd began to yell, "Get the Jews." (Tr. 1073). Toward the end of his speech, Price shouted something to the effect of "Let's go to Kingston Avenue and get the Jews."1 (Tr. 1377). Thereupon, a large part of the crowd, including Price and defendant Nelson (who had been in the crowd and had heard Price's speech) proceeded towards Kingston Avenue.

Witnesses testified that prior to Price's speech, the crowd was neither unified nor particularly out of control, but that after he spoke, it became transformed into an explosive mass. It also became violent, throwing objects and setting two cars on fire, attacking a Jewish couple who may have had a baby with them, and assaulting a second Jewish man as he exited a building on Kingston Avenue. As the crowd proceeded past Kingston Avenue and onto the next block (Brooklyn Avenue), it spotted Yankel Rosenbaum ("Rosenbaum"), a bearded man in orthodox Jewish dress. A member of the crowd, possibly Price, yelled "get'em" and "there goes one." (Tr. 1580, 1591). Someone else in the crowd was also heard to shout "get the Jew, kill the Jew." (Tr. 1000).

On being targeted, Rosenbaum sought to escape the mob, running across Brooklyn Avenue and then across President Street. The crowd, however, caught up with him. A group of between ten and fifteen people, including Nelson, then began beating him, knocking him to the ground, and striking him repeatedly. Eventually, a police car approached the scene, causing the attacking group to scatter. Nelson attempted to flee with the rest of the crowd, but (according to an admission Nelson made to his girlfriend Travionne Shaw ("Shaw")) Rosenbaum grabbed hold of Nelson's T-shirt and prevented him from making good his escape. After trying unsuccessfully, by other means, to induce Rosenbaum to let him go, Nelson (again according to the admission made to Shaw) stabbed Rosenbaum and fled.

Nelson was seen running away by the police and was subsequently caught; when searched, he was found to have a bloody knife in his possession. Although Nelson initially denied committing the stabbing, Rosenbaum, (before going to the hospital) identified Nelson out of a lineup of four African-American males, and angrily asked him "[w]hy did you stab me?" (Tr. 1169). Testing conducted later, moreover, revealed that the blood on the knife found on Nelson (and also blood found on Nelson's trouser pocket) matched Rosenbaum's DNA and was inconsistent with Nelson's own DNA.2

After receiving what the government concedes was inadequate medical care, Rosenbaum died from the stab-wounds he had sustained. Nelson was thereupon tried in New York State court on a variety of charges, including second degree murder in connection with the death of Rosenbaum. In October 1992, a jury acquitted Nelson of all charges.

Following Nelson's acquittal in New York State court, Nelson and Price (collectively the "defendants") were indicted on federal charges. Nelson was charged with violating 18 U.S.C. § 245, which states, in pertinent part, that:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--

. . .

(2) any person because of his race, color, religion or national origin and because he is or has been--

. . .

(B) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof;

. . .

shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

18 U.S.C. § 245(b)(2)(B). Price was charged both with violating § 245(b)(2)(B) directly and with aiding and abetting Nelson's violation of § 245(b)(2)(B), in violation of 18 U.S.C. § 2.

The federal indictment against Nelson and Price principally alleged that the defendants

by force and threat of force did willfully injure, intimidate and interfere with, and attempt to injure, intimidate and interfere with, Yankel Rosenbaum, an Orthodox Jew, because of his religion and because he was enjoying facilities provided and administered by a subdivision of the State of New York, namely, the public streets provided and administered by the City of New York, and bodily injury to and the death of Yankel Rosenbaum did result.

Superceding Indictment filed Aug. 14, 1996, at 1. The defendants filed pre-trial motions to dismiss the indictment against them on several grounds. The district court denied these motions, and the case went to trial before a jury.

From the outset of the trial, the district court (Trager, J.), no doubt responding to the politically charged nature of the case and to the controversial State court acquittal of Nelson,3 made clear his intention to empanel "a moral jury that renders a verdict that has moral integrity." (Tr. 627). The district court stated that "[t]his trial is occurring for the same reason Rodney King's trial occurred, the second trial, because the first jury did not represent the community."4 (Tr. 628). The court relatedly and repeatedly expressed its desire to empanel a jury (and not merely begin from a venire) "that represents this community." (Tr. 628). Indeed, the district court made its intentions concerning jury selection absolutely plain to the parties, stating:

I have an agenda here which I have made very clear from the very beginning, to end up with a jury that represents the community that will have moral validity; and if there is a hung jury, that itself will be a statement to both sides about both what is the process and the problems are with our society. To me, justice will be served.5

(Tr. 759).

In pursuit of the aim of empaneling a religiously and racially mixed jury, the district court made three important jury selection decisions. First, the district court denied the defendants' Batson challenge to the fact that the government, even though African Americans comprised only 30% of the jury pool, used 5 out of 9, or 55 %, of its peremptory challenges to strike African-American candidates from the jury. Second, the district court denied the defendants' for-cause challenge of a Jewish juror (Juror 108) in spite of the fact that the juror had expressed grave doubts about his ability to be objective concerning the case and, when asked to "look into [his] heart" to determine whether he could "give the defendant[s] here a fair trial," had responded "I don't know, I honestly don't know." (Tr. 632). And third, when an African-American empaneled juror was excused, the district court did not simply replace this juror with the first alternate, who was white, but instead, sua sponte, removed a second (white) juror from the panel and filled the two spaces this created with an African-American juror and with the above mentioned Jewish Juror 108. Both of these jurors were selected out of order from the list of alternates in clear violation of Fed. R. Crim. P. 24(c).

The district court took these unusual steps expressly to secure an empaneled jury containing both African Americans and Jews in a racial and religious balance that the district court believed would cause the public to "understand," so that "nobody [could] complain whatever the result." (Tr. 866). In response, defense counsel explicitly stated that this method of jury selection "would be agreeable to the defendants." (Tr. 866). Moreover, the defendants themselves consented to the proposal and did so on the record.6

The jury that resulted from this process convicted both Nelson and Price. After the jury returned its verdict, Nelson moved to vacate the convictions on the grounds (a) that the evidence presented at trial was insufficient to support the verdict (specifically, to support the findings of intent on which the conviction under § 245(b)(2)(B) depends) and (b) that § 245(b)(2)(B) is unconstitutional because it reaches conduct that Congress is without authority to regulate. The district court denied the motion and proceeded to sentencing. Under § 2H1.3 (1990)7 of the United States Sentencing Guidelines, applicable to violations of 18 U.S.C. § 245, Nelson's and Price's base offense levels were "2 plus the offense level applicable to any underlying offense." The district court determined that the underlying criminal conduct for both Nelson and Price was second degree murder, which carries a base offense level of 33.8 See U.S.S.G. § 2A1.2. Accordingly (after denying several requests for downward departures), the district court sentenced Nelson principally to 235 months in prison and Price principally to 262 months in prison.

Both defendants now appeal.

We begin our discussion by addressing the defendants' contentions concerning 18 U.S.C. § 245(b)(2)(B) and the jury selection process. Once we have decided these questions, we consider, in light of their disposition, those of the defendants' remaining claims that are still relevant and properly before us.

A. 18 U.S.C. § 245(b)(2)(B).

Nelson and Price present three arguments with respect to § 18 U.S.C. § 245(b)(2)(B): first, and most importantly, they claim that § 245(b)(2)(B) represents, at least as applied to them, an improper exercise of congressional power beyond the authority given to the federal government by the Constitution; second, they contend that the district court failed correctly to charge, and the government failed sufficiently to prove, that they displayed the dual intent required by § 245(b)(2)(B); and third, the defendants assert that § 245(b)(2)(B) is inapplicable to their case because the Brooklyn city street on which Rosenbaum was assaulted does not constitute a state or local "facility" within the meaning of the statute. We take up each argument in turn.

1. The Constitutionality of 18 U.S.C. § 245(b)(2)(B).

It is axiomatic that the federal government, as established under the Constitution, is a government of limited powers, so that the federal government enjoys no authority beyond what the Constitution confers, and any exercise of federal power is permissible only if it is authorized by the Constitution, as it has been amended and interpreted from time to time. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) ("This government is acknowledged by all, to be one of enumerated powers."); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("[T]hat those limits may not be mistaken, or forgotten, the constitution is written."); cf. New York v. United States, 505 U.S. 144 (1992).

Title18, Section 245(b)(2)(B) of the United States Code makes it a federal crime for a person (even if acting in a purely private capacity) to injure someone else because of the victim's race or religion and because the victim was enjoying a public facility provided by any State or local government. The defendants claim that, at least if interpreted to reach their conduct in this case, the statute exceeds the powers that the Constitution grants to the federal government. The government rejects this contention and asserts that, as applied to these defendants, the statute is constitutional. At various points in this litigation, the government has argued that the grant of authority on which the constitutionality of § 245(b)(2)(B) is founded appears in Section Five of the Fourteenth Amendment, in the Commerce Clause, and in the Thirteenth Amendment.

In its supplemental briefs, however, the government expressly declines to pursue the first of these arguments, observing that the Supreme Court's recent decision in United States v. Morrison, 529 U.S. 598 (2000), an interpretation of the State Action Doctrine9 (first articulated in United States v. Harris, 106 U.S. 629, 640 (1883), and in the Civil Rights Cases, 109 U.S. 3, 11 (1883)) poses a significant obstacle to any reading of Section Five of the Fourteenth Amendment as authorizing Congress to regulate private conduct of the kind at issue in the case at bar.10 Because the government no longer presents the Fourteenth Amendment argument, and because we conclude that this argument is not necessary to sustaining the constitutionality of § 245(b)(2)(B) as applied in this case, we decline to address it. Similarly, because we determine that the Commerce Clause argument is also unnecessary to the constitutionality of this statute as here applied, we set it to one side as well. We arrive at these conclusions because we believe that § 245(b)(2)(B) falls comfortably within Congress's powers under the Thirteenth Amendment as that Amendment has authoritatively been interpreted.

A. The Scope of the Thirteenth Amendment.

The Thirteenth Amendment to the United States Constitution provides:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

U.S. Const. amend. XIII.

In the case at bar, the government asserts that this constitutional provision authorizes the application of § 245(b)(2)(B) to make a federal crime of concededly private, bias-motivated violence against a person because of that person's Jewishness and because that person was enjoying the use of a city street. In considering this contention, we focus on each of the two Sections of the Thirteenth Amendment in turn. We bear in mind, however, that much of the doctrine surrounding the Amendment implicates both sections, so that our seriatim approach is more expository than substantive.

In contrast to Section One of the Fourteenth Amendment, which famously includes the language "No State shall...," Section One of the Thirteenth Amendment eliminates slavery and involuntary servitude generally, and without any reference to the source of the imposition of slavery or servitude. Accordingly, it has been recognized from the Amendment's enactment that Congress's powers under the Thirteenth Amendment are not limited by any analogue to the State Action Doctrine that was early deemed to restrict the Fourteenth Amendment. The Thirteenth Amendment, unlike the Fourteenth, in and of itself reaches purely private conduct.

Thus it has long been settled that the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U.S. at 20. And accordingly, "[u]nder the Thirteenth Amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not." Id. at 23; see also Runyon v. McCrary, 427 U.S. 160, 179 (1976) (noting that it "has never been doubted" that the power granted Congress by the Thirteenth Amendment "includes the power to enact laws... operating upon the acts of individuals" (quotation marks and citation omitted)); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 438-39 (1968) ("If Congress has power under the Thirteenth Amendment to eradicate conditions..., then no federal statute calculated to achieve that objective can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals."). The fact that § 245(b)(2)(B) is applied in this case to reach purely private conduct therefore does not -- regardless of what might be the rule in the context of the Fourteenth Amendment -- present any obstacle to that statute's being upheld as a proper exercise of Congress's power under the Thirteenth Amendment.

Although the Thirteenth Amendment, which was ratified in 1865, was enacted in the historical context of American slavery, which applied almost exclusively to African Americans, the interpretation of the Amendment itself has not been so limited. The text of the Amendment nowhere identifies or otherwise singles out those whose servitude the Amendment had specifically been enacted to address. And the Supreme Court early on held that although "negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter," and would apply equally to "Mexican peonage or the Chinese coolie labor system."11 The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 72 (1873). The Court, moreover, re-affirmed this sentiment roughly thirty years later, explaining that the Thirteenth Amendment "is the denunciation of a condition, and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon, are as much within its compass as slavery or involuntary servitude of the African." Hodges v. United States, 203 U.S. 1, 16-17 (1906). There can, therefore, be no doubt that the Thirteenth Amendment's prohibitions extend, at the least, to all race-based slavery or servitude.

Furthermore,"race" as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today's usage.12 The fact that Jews (the group to which the government seeks, through the application of § 245(b)(2)(B) against Nelson and Price, to extend the protections of the Thirteenth Amendment) are today generally not considered a distinct race, therefore, does not rule out Jews from the shelter of the Thirteenth Amendment. See, e.g., Hodges, 203 U.S. 16-17 (recognizing protection under the Thirteenth Amendment of the "Italian" race, among others). Indeed, the Supreme Court's case law firmly and clearly rules that Jews count as a "race" under certain civil rights statutes enacted pursuant to Congress's power under the Thirteenth Amendment. See St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 611 (1987); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987). As we shall explain in detail, these cases not only extend the protections of Reconstruction Era civil rights statutes, now codified at 42 U.S.C. §§ 1981 and 1982, to Jews understood as a "race," they also implicitly rule that the Thirteenth Amendment, the source of congressional power upon which the Court found that these statutes relied, protects Jews as a race.

In establishing this conclusion, it will be useful to begin by describing §§ 1981 and 1982. Title 42, Section 1981 of the United States Code has its origins in the Civil Rights Act of 1866, 14 Stat. 27. The section provides that "[a]ll persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts... as is enjoyed by white citizens...." 42 U.S.C. § 1981. Like the Thirteenth Amendment, the text of § 1981 does not expressly mention the race of the person benefitted by the statute, and, as it has done with the Thirteenth Amendment, the Supreme Court has construed the section to forbid any "racial" discrimination in the making of private as well as public contracts. See Runyon, 427 U.S. at 168, 174-75. Section 1982 similarly has its origins in the 1866 Act, and provides that "[a]ll citizens of the United States shall have the same right... as is enjoyed by white citizens... to inherit, purchase, lease, sell, hold, and convey real and personal property." Once again, although the text of § 1982 does not expressly mention the race of the beneficiary of the statute's protections, the Supreme Court has construed the section to forbid public and private racially discriminatory interference with property rights. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968). Moreover, because the Fourteenth Amendment was not ratified until 1868, both § 1981 and § 1982 must, in their initial 1866 instantiations, have been enacted pursuant to the Thirteenth Amendment, which was adopted in 1865. And, because both sections reach purely private action, it remains the Thirteenth Amendment that must continue to play a dominant role in supporting their constitutionality today. Not surprisingly, then, Runyon, and Alfred H. Mayer, upheld the constitutionality of §§ 1981 and 1982 expressly by reference to the Thirteenth Amendment. See Runyon, 427 U.S. at 179; Alfred H. Mayer, 392 U.S. at 438-39. It follows that the scope of the "races" protected by the Thirteenth Amendment cannot be narrower than the scope of "races" these statutes themselves protect.

St. Francis College and Shaare Tefila make clear that §§ 1981 and 1982 (and consequently the Thirteenth Amendment) extend to protect the Jewish "race." First, in St. Francis College, the Supreme Court unanimously held that the guarantees established by 42 U.S.C. § 1981 applied to a Caucasian of Arabian ancestry. In reaching this holding, the Court conducted an extensive investigation of mid-to-late nineteenth century dictionary and encyclopedia accounts of race, which revealed that, in addition to Arabs, Finns, Basques, Norwegians, Germans, Greeks, and many others, Jews (also known as Hebrews) were considered a distinct race at the time the Thirteenth Amendment was adopted. See St. Francis Coll., 481 U.S. at 610-12 (citing to the 1858 edition of the Encyclopedia Americana, the 1863 edition of the New American Cycolp'dia, and the 1878 (Ninth) edition of the Encyclopedia Britannica). In addition, the Court looked into the legislative history of § 1981, which also revealed that the 1866 Congress considered Jews to be a distinct race. See id. at 612 (citing Cong. Globe, 39th Cong., 1st Sess. 542 (1866) (remarks of Rep. Dawson referring to the Jewish race)). This research led the Court to conclude, concerning § 1981, that

Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory.

Id. at 613.13 Moreover, in Shaare Tefila, the Supreme Court expressly held that when 42 U.S.C. § 1982 was adopted, "Jews constituted a group of people that Congress intended to protect," and that "[i]t is evident from the legislative history of the section reviewed in Saint Francis College, a review we need not repeat here, that Jews and Arabs were among the peoples then considered to be distinct races and hence within the protection of the statute." Shaare Tefila, 481 U.S. at 617-18.

As noted above, these arguments apply, a fortiori, to the Thirteenth Amendment itself. For it is on the authority of the Thirteenth Amendment that the applications of these civil rights statutes developed in St. Francis College and Shaare Tefila depend. Accordingly, we find that Jews were among the "races" intended to be protected from slavery and involuntary servitude by the Thirteenth Amendment, and that Congress may today protect Jews pursuant to that Amendment.14

Finally, there is strong precedent to support the conclusion that the Thirteenth Amendment extends its protections to religions directly, and thus to members of the Jewish religion, without the detour through historically changing conceptions of "race" that we have just taken. Certainly there is nothing in the conceptual or linguistic structure of the prohibition of "slavery" and "involuntary servitude" -- which appears in the Thirteenth Amendment, it is worth noting once again, unadorned by the adjective "racial" -- that limits the banning of these evils only when they are imposed along racial lines. See Kozminski, 487 U.S. at 942 ("The primary purpose of the Amendment was to abolish the institution of African slavery... but the Amendment was not limited to that purpose; the phrase `involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results." (internal quotation marks omitted)). The most basic feature of "slavery" or "involuntary servitude" -- the subjugation of one person to another by coercive means15 -- remains the same regardless of whether a person is subjugated on grounds of race or for some other reason. Indeed, one need look no further than Thucydides's famous Melian Dialogue to recognize that over much of the course of human history, slavery has been imposed, without regard to race, as the policy of a conquering nation over a conquered. See Thucydides, The Peloponnesian War book v para. 85-116. Certainly religion- rather than race-based slavery is consistent with both the status of the slave and with how that condition has been imposed historically.

These conceptual and historical observations, moreover, find ample support in the case-law. To begin with, although St. Francis College casts its argument in terms of historical understandings of the meaning of the word "race," the conclusion of the Court in that case -- that § 1981 and, by implication, the Thirteenth Amendment, "protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics," St. Francis Coll., 481 U.S. at 613 -- reads much more broadly than it would were the opinion limiting its sweep to the historicized concept of "race." Cf. Griffin, 403 U.S. at 102 (noting that the Thirteenth Amendment authorizes the application of 42 U.S.C. § 1985(3) when there is "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action"); see also Kozminski, 487 U.S. at 931 (inquiring whether two farmhands had been subjected to slavery or involuntary servitude and in doing so, treating them simply as individuals and never once considering the racial, ethnic, or religious classes to which they might have belonged). As a result, Chasidic Jews (like Rosenbaum) would fall within the coverage of this phrase even if, as a historical matter, Jews had never been considered specifically a distinct race.

That the protections of the Thirteenth Amendment extend to private actions, and that Jews are entitled to the full measure of these protections, does not, however, settle the question now before us. It remains to be determined whether these protections (bestowed upon Jews or any other groups) suffice to authorize the congressional exercise of power at issue here -- § 245(b)(2)(B)'s criminalization of violence applied against a person on account of (a) his race (religion), and (b) his use of a public street. If the Thirteenth Amendment included only Section One, this would present an unsettled question. Although it has been agreed from the outset that "[b]y its own unaided force and effect [the Thirteenth Amendment] abolished slavery, and established universal freedom," Civil Rights Cases, 109 U.S. at 20, the Supreme Court has "left open the question whether § 1 of the Amendment by its own terms did anything more than abolish [actual] slavery." City of Memphis v. Greene, 451 U.S. 100, 125-26 (1981) (citing Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1986), and also declining to decide the question).16

B. The Power of Congress Under Section Two of the Thirteenth Amendment.

The existence of the Amendment's second section, however, renders consideration of the independent scope of Section One unnecessary.17 As the following discussion explains, Section Two grants Congress the power to enforce the Amendment by appropriate legislation, and it is clear from many decisions of the Supreme Court that Congress may, under its Section Two enforcement power, now reach conduct that is not directly prohibited under Section One. Furthermore, § 245(b)(2)(B), as applied in the case before us, falls comfortably within the limits of Congress's broad powers of enforcement under Section Two as these have been defined by controlling precedent.

The enforcement power granted Congress by Section Two has not always been construed in the broad manner described above. See Risa L. Goluboff, The Thirteenth Amendment and the Lost Origins of Civil Rights, 50 Duke L.J. 1609, 1639 (2001). Thus, even though the Supreme Court in the Civil Rights Cases interpreted the Thirteenth Amendment to authorize Congress to abolish not only chattel slavery itself but also to "pass all laws necessary and proper for abolishing all badges and incidents of slavery," Civil Rights Cases, 109 U.S. at 20, it simultaneously suggested that the concept of "badges and incidents of slavery" might have a narrow construction. In particular, the Court held that the Congress's power to abolish the "badges and incidents of slavery" was limited to "secur[ing] to all citizens of every race and color... those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property, as is enjoyed by white citizens." Id. at 22. At the same time, the Court stated that the Thirteenth Amendment did not give Congress the power to "adjust what may be called the social rights of men and races in the community." Id. And it found that the Civil Rights Act of 1875, which prohibited the denial of public accommodations based on race, "ha[d] nothing to do with slavery or involuntary servitude," and hence could not be sustained as constitutional under the Thirteenth Amendment. Id. at 24. To adopt a more general interpretation of Congress's powers under Section Two, the Supreme Court concluded, would be "running the slavery argument into the ground." Id.

Moreover, regardless of whether this narrow reading was required to decide the Civil Rights Cases, it was expressly adopted roughly twenty years later, in Hodges v. United States, 203 U.S. 1 (1906), when the Supreme Court reversed the convictions (under predecessors to 18 U.S.C. § 241 and 42 U.S.C. §1981) of white men who had conspired to terrorize a group of black men to prevent them from working at a sawmill. In reaching this conclusion, the Court argued that "it was not the intent of the [Thirteenth] Amendment to denounce every act done to an individual which was wrong if done to a free man, and yet justified in a condition of slavery." Hodges, 203 U.S. at 19. And it added that "no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery" as prohibited by the Amendment. Id. at 18. Finally, the Hodges Court couched these arguments in terms that narrowed Congress's Section Two power quite generally, concluding, in effect, that the Thirteenth Amendment authorizes Congress to proscribe only private acts that actually enslave a person, that is, that create "a state of entire subjection of one person to the will of another." Id. at 7 (internal quotations omitted).

Both of these interpretations of the Thirteenth Amendment were adopted over ringing dissents by Justice Harlan (joined, in Hodges, by Justice Day). Justice Harlan argued that under the Thirteenth Amendment, Congress "acquired the power not only to legislate for the eradication of slavery, but the power to give full effect to this bestowment of liberty." Id. at 29 (Harlan, J., dissenting). Consequently, Justice Harlan concluded, Congress enjoyed the power "to pass all laws necessary and proper for carrying into execution" this power, id. at 25-26 (Harlan, J., dissenting), including laws to "make it impossible that any of [slavery's] incidents or badges should exist or be enforced in any State or Territory of the United States." Id. at 27 (Harlan, J.,dissenting). Moreover, and most critically, Justice Harlan asserted that "[t]he form and manner of the protection [against slavery and involuntary servitude] may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide." Id. at 24 (Harlan, J., dissenting) (quotation marks omitted).

Although Justice Harlan's view of the Amendment has not been adopted in every particular, see supra footnote 16, the narrow construction of congressional power under Section Two -- epitomized by Hodges -- was expressly overruled. See Jones, 392 U.S. at 441 n.78. And Justice Harlan's reading of the Thirteenth Amendment's enforcement clause, including, critically, his account of the scope of congressional discretion under that clause, has in principal part prevailed.

The Supreme Court overruled Hodges and established this broader account of the enforcement power in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).18 Jones involved a plaintiff who sought relief under 42 U.S.C. § 1982 against defendants who had refused to sell him a house for the sole reason that he was black. The Supreme Court held that, as a matter of statutory construction, § 1982 "bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress [under Section Two] to enforce the Thirteenth Amendment." Id. at 413. Furthermore, the Court found that the authority of Congress to enforce the Thirteenth Amendment "include[s] the power to eliminate all racial barriers to the acquisition of real and personal property." Id. at 439. Critically, the Court reached this conclusion while insisting that it need not decide the scope of the direct prohibitions contained in Section One of the Thirteenth Amendment because Section Two "clothed `Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.'" Id. at 439 (quoting Civil Rights Cases, 109 U.S. at 20).19 And most significantly, the Court noted, "[s]urely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." Jones, 392 U.S. at 440. Finally, the Court expressly stated that, to the extent it was inconsistent with these pronouncements, Hodges was overruled. Id. at 443 n.78.

Subsequently, in Griffin v. Breckenridge, 403 U.S. 88 (1971), the Supreme Court expanded on the theme introduced in Jones. The Court upheld, under the Thirteenth Amendment, the constitutionality of 42 U.S.C. § 1985(3), which creates a federal cause of action for damages when "two or more persons... conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws... [and]... do... any act in furtherance of the object of such conspiracy whereby another is injured... or deprived of... any right or privilege of a citizen of the United States."

In upholding the statute -- as applied to defendants who had conspired to assault and had, in fact, assaulted a group of blacks who were driving through Mississippi, and who the defendants (mistakenly) believed were involved with civil rights activists - the Supreme Court stated that "the varieties of private conduct that [Congress] may make criminally punishable or civilly remediable [under Section Two of the Thirteenth Amendment] extend far beyond the actual imposition of slavery or involuntary servitude." Griffin, 403 U.S. at 105. Indeed, the Court expressed complete confidence both in this principle and in the fact that the principle covered the facts of the case before it, saying that "[w]e can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." Id. Thereafter, the Supreme Court has applied this account of Congress's enforcement power under Section Two of the Thirteenth Amendment to uphold 42 U.S.C. § 1981 and that statute's creation of a federal civil remedy for racial discrimination in making and enforcing contracts in the context of private employment, see Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975), and private education, see Runyon, 427 U.S. at 173-75, 179.

It seems to us that this set of cases necessarily depends on the notion that Congress has been vested, by Section Two of the Thirteenth Amendment, with the authority to prohibit conduct that the courts are unable to say violates Section One directly. This theme is well (if indirectly) developed in two Supreme Court cases declining to invalidate local government actions under Section One of the Thirteenth Amendment but expressly suggesting that if Congress had enacted statutes prohibiting the challenged conduct pursuant to Section Two of the Amendment, then the prohibitions, which the Court was itself unwilling to impose, would have been upheld. Thus, in Palmer v. Thompson, 403 U.S. 217, 227 (1971), the Supreme Court declared itself unwilling to hold that the City of Jackson's decision to close a municipal swimming pool rather than desegregate it violated the Thirteenth Amendment, but noted that "although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation, the Amendment does contain other words that... could empower Congress to outlaw `badges of slavery.'" The Court, after quoting Section Two, noted that "Congress has passed no law under this power to regulate a city's opening or closing of swimming pools." Id. And in City of Memphis v. Greene, 451 U.S. 100, 128 (1981), the Court -- even as it declined to hold that the closing of a city street (that began in a predominantly black neighborhood and traversed a predominantly white one) in and of itself contravened the Thirteenth Amendment -- added, by way of explanation and contrast, that the case did "not disclose a violation of any of the enabling legislation enacted by Congress pursuant to § 2 of the Thirteenth Amendment."

The difference between the Court's articulate unwillingness, in Palmer and Greene, to apply Section One of the Thirteenth Amendment where Congress had not acted under Section Two and its equally articulate willingness, in Jones, Griffin, Johnson, and Runyon, to affirm Congress's choices when it had acted under the latter section, serves to underscore the extent to which Congress's powers under Section Two of the Thirteenth Amendment extend beyond the prohibition on actual slavery and servitude expressed in Section One. And, as we have shown, Congress, through its enforcement power under Section Two of the Thirteenth Amendment is empowered, to control conduct that does not come close to violating Section One directly.20 The question before us is whether, in light of this jurisprudence, § 245(b)(2)(B), as applied in the case at bar, lies within this expansive enforcement power. We must, in other words, ask whether Congress could rationally have determined that the acts of violence covered by § 245(b)(2)(B) impose a badge or incident of servitude on their victims.

C. The Meaning and Significance Under the Thirteenth Amendment of the Language of Section 245(b)(2)(B).

The critical feature of § 245(b)(2)(B) for purposes of this constitutional analysis is that it does not seek to reach most force-based injuries, intimidations, or interferences and by no means attempts to create a general, undifferentiated federal law of criminal assault. In this regard, the Supreme Court's treatment of § 1985(3) in Griffin provides a striking analogue. In Griffin, the Court said: "The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose -- by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of [a] limiting amendment [and included in the statute]." Griffin, 403 U.S. at 102. Likewise, in the case at bar, similar constitutional shoals can be avoided by giving full effect to the congressional purpose behind § 245(b)(2)(B) -- by requiring, in other words, as elements of the crime defined by § 245(b)(2)(B) that the forceful injury, intimidation, or interference that the statute addresses be committed "because" of the victim's race or religion, etc., and "because" the victim was participating in or enjoying a facility, etc., provided or administered by a State or a subdivision thereof. See 18 U.S.C. § 245(b)(2)(B). Just as the element of invidiously discriminatory motivation was held in Griffin to bring § 1985(3) within the scope of Congress's Thirteenth Amendment powers, so also do the requirements that the victim be harmed because of his or her race or religion and his or her use of public-facilities bring § 245(b)(2)(B) under the same constitutional authority. In each case, the additional elements allow Congress "rationally to determine," Jones, 392 U.S. at 440, that the proscribed conduct imposes a badge or incident of slavery on its victims.

Since these additional elements of the statute are essential to its constitutionality, we must with particular assiduousness embark on an exercise of statutory interpretation to determine their meaning in § 245(b)(2)(B).

"The starting point in every case involving construction of a statute is the language itself." Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring). Accordingly, "[w]hen confronted with a statute which is plain and unambiguous on its face, [a court] ordinarily do[es] not look to legislative history as a guide to its meaning." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185 n.29 (1978) (citing Ex parte Collett, 337 U.S. 55, 61 (1949)). The meaning of § 245(b)(2)(B), however, is anything but unambiguous.

Specifically, the significance of the word "because," as that word is used in defining the two aforementioned constitutionally crucial elements of the crime, is anything but plain. Causation is one of the most famously complicated concepts in language and in law. The ancient Greeks, for example, distinguished among four concepts all now covered by the modern English word "cause." See Aristotle, The Metaphysics 983a-983b (distinguishing among the final, formal, material, and efficient causation). And the modern law of torts employs at least three concepts of cause: "cause-in-fact" or "but for" cause, "proximate" or "legal" cause, see Restatement (Third) of Torts, § 431 cmt. a (distinguishing these two), and "causal link" or "causal tendency." See Liriano v. Hobart Corp., 170 F.3d 264, 271-72 (2d Cir. 1999) (emphasizing the significance of the last); Zuchowicz v. United States, 140 F.3d 381, 388 n.7 (2d Cir. 1998) (same); see also Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 Univ. of Chi. L. Rev. 69, 71 (1975) (identifying and differentiating these three causal concepts). Moreover, "because" appears in § 245(b)(2)(B) nakedly, without any larger statutory structure by reference to which its meaning may be assessed. For all these reasons, "the face of the Act is inescapably ambiguous," Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J., concurring), and we must, albeit hesitantly, look to the legislative history of § 245(b)(2)(B) to help us establish Congress's intent and hence the statute's meaning.

In making this inquiry, we rely principally on the reports of the legislative Committees involved in drafting the statute and in steering it through Congress. The Supreme Court has said that these Reports, "which represent the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation," constitute "the authoritative source for finding the Legislature's intent." Garcia v. United States, 469 U.S. 70, 76 (1984) (internal quotation marks and brackets omitted). We therefore "eschew[] reliance on the passing comments of one Member, and casual statements from the floor debates," id. (internal citations omitted), and focus on the Reports instead. In particular, we focus on that of the Senate Judiciary Committee, S. Rep. No. 90-721, since this is the only Committee to have considered and commented on the statute in a form that included both of the two "becauses" at issue here.

The Senate Judiciary Committee Report, after noting in passing that the first "because" entails that an act will come under the statute only if it is "motivated by the race, color, religion, or national origin of the victim," S. Rep. No. 90-721, at 7 (1968), reprinted in 1986 U.S.C.C.A.N. 1837, 1844 (emphasis added), focuses more carefully on the meaning of the second "because" that appears in § 245(b)(2)(B). This "because" establishes that in order to violate the statute a person, in addition to being motivated by his victim's race, etc., must act because the victim was availing herself of, in the case of § 245(b)(2)(B), publicly provided facilities.

In discussing this phrase, the Senate Committee began by noting that the version of the statute originally reported out by the House Judiciary Committee covered acts committed against a person because of her race, etc., and done "while" the person was using public facilities. Id. The Senate Committee noted that the second "because" entered the statute as an amendment proposed on the House floor. Id. The original version, the Senate Committee said, "may have swept too broadly" for the "constitutional basis [of] the bill," and the Committee therefore retained the second "because" that had been added to the bill by the House floor amendment. Id.

These background facts and Committee remarks establish that the Congress inserted the second "because" with the specific purpose of narrowing § 245(b)(2)(B)'s reach. But they do not reveal whether Congress, by this second "because," intended § 245(b)(2)(B) to reach all acts which would not have been committed but for the fact that the victim was enjoying a public facility, only the narrower class of acts which were committed with the intent to prevent or dissuade the victim from, or punish the victim for, enjoying a public facility, or-narrower still-acts committed with the motive of preventing, dissuading, or punishing the victim's use of a public facility.

Under the first interpretation, a racially motivated assault, for example, would be covered by the statute if the attacker sought out his victims exclusively in a public park (but not if the attacker followed a victim from her house and attacked her while she was in the park only because this happened to be where the first opportunity to assault her arose). Under the second and third interpretations, by contrast, an attack would not come under the statute even if the attacker only assaulted victims in the public park, unless the focus on victims who used the park was more than just a matter of convenience. To be covered, the victims' public-park-use would itself have to be an intrinsic element of the attacker's intent or motivation, a reason, that is, for the assault. The most obvious examples of racially, etc., motivated attacks that implicate these latter senses of "because the victims used public facilities" are assaults that punish a member of a minority group for using the facilities or, relatedly, discourage that person from doing so in the future.

While the familiarity of racially or religiously (etc.) motivated violence allowed the Senate Judiciary Committee to assume in passing that "because" of race, or religion, etc., as it appears in § 245(b)(2)(B), means motivated by racial or religious, etc., hatred,21 the somewhat lesser familiarity of the subtypes of violence identified by the second "because" required more detailed treatment in Committee. And although the Committee Report does not reveal that the Senate expressly focused upon the difference between the three senses of the phrase "because [the victim] is or has been... enjoying any... facility... provided... by any State," 18 U.S.C. § 245(b)(2)(B), the Report does demonstrate that the Senate wished to use "because" in the second, narrower, meaning, but not in the third, narrowest, sense. The Senate Committee, after noting that "[i]n the House Committee's version [which read "while"] it was not necessary to show that the defendant intended to interfere with the protected activity, but only that the use of force was racially motivated," concluded that "[t]he problem is avoided by the amendment [adding the second "because"] which adds the additional element of intent -- a purpose to interfere with the activity." S. Rep. No. 90-721, at 7, reprinted in 1968 U.S.C.C.A.N. at 1844. Indeed, the Senate Committee expressly mentioned precisely the two core cases that we identified as satisfying this stricter interpretation of the second "because":

Two types of situations would be covered [by the statute]: interference intended to prevent present or future participation in a described activity by the victim, and interference intended as a reprisal against the victim for having participated in a described activity.

Id.22 And, significantly, the Senate Report requires intent with respect to these situations rather than motivation.23

Section 245(b)(2)(B), properly understood, therefore stops well short of creating a general, undifferentiated federal law of criminal assault and instead restricts its attention to acts of force or threat of force that involve two distinct kinds of discriminatory relationships with the victim -- first, an animus against the victim on account of her race, religion, etc., that is, her membership in the categories the statute protects; and, second, an intent to act against the victim on account of her using public facilities, etc., that is, because she was engaging in an activity the statute protects.24

It is important to understand that acts of violence or force committed against members of a hated class of people with the intent to exact retribution for and create dissuasion against their use of public facilities have a long and intimate historical association with slavery and its cognate institutions. Thus there is widespread agreement among scholars of slavery that slavery in general (across cultural and historical periods) centrally involves the master's constant power to use private violence against the slave, see Orlando Patterson, Slavery and Social Death: A Comparative Study 1-14 (1982) (noting that such violence is one of the three "constituent elements" of slavery), and that "slavery is preeminently a relationship of power and dominion originating in and sustained by violence." David Brian Davis, Slavery and Human Progress 11 (1984). Moreover, the peculiar institution of American slavery unquestionably did not depart from this general rule. Southern States, for example, "decriminalized [private] violence inflicted upon blacks to the extent thought necessary to assert and preserve white supremacy." Randall Kennedy, Race, Crime and the Law 30 (1997). And, in several States "legislators expressly deprived slaves who were violently abused by whites of the protections of the common law of crimes by passing exculpatory acts that granted both slave masters and whites who were strangers to the slave legal rights to beat, whip, and kill bondsmen." Andrew Fede, Legitimized Violent Slave Abuse in the American South, 1619-1865: A Case Study of Law and Social Change in Six Southern States, 29 Am. J. Legal Hist. 93, 95 (1985).

Significantly, this practice of race-based private violence both continued beyond the demise of the institution of chattel slavery and was closely connected to the prevention of former slaves' exercise of their newly obtained civil and other rights (rights that slavery had previously denied them), thereby presenting "a spectacle of slavery unwilling to die." Jones, 392 U.S. at 445 (Douglas, J., concurring). Thus "violence against blacks reached staggering proportions in the immediate aftermath of the [Civil War]," Eric Foner, Reconstruction: America's Unfinished Revolution 1863-1877, at 119 (1988), and such violence was specifically directed at the exercise, by black Americans, of the rights and habits of free persons. See, e.g., id. at 120 ("The pervasiveness of violence reflected whites' determination to define in their own way the meaning of freedom and their determined resistance to blacks' efforts to establish their autonomy, whether in matters of family, church, labor, or personal demeanor."); Kennedy, supra, at 39 ("In an effort to reassert control, whites beat or killed African-Americans for such `infractions' as failing to step off sidewalks, objecting to beatings of their children, addressing whites without deference, and attempting to vote.").

As these studies suggest, there exist indubitable connections (a) between slavery and private violence directed against despised and enslaved groups and, more specifically, (b) between American slavery and private violence and (c) between post Civil War efforts to return freed slaves to a subjugated status and private violence directed at interfering with and discouraging the freed slaves' exercise of civil rights in public places. It is in the shadow of these connections, and citing to Justice Douglas's characterization of slavery as "unwilling to die," Jones, 392 U.S. at 445 (Douglas, J., concurring), that the Eighth Circuit (the only Circuit previously to address the question of § 245(b)(2)(B)'s constitutionality under the Thirteenth Amendment), concluded "[n]or can there be doubt that interfering with a person's use of a public [facility] because he is black is a badge of slavery." United States v. Bledsoe, 728 F.2d 1094, 1097 (8th Cir. 1984).

On the basis of the foregoing analysis, we similarly conclude that § 245(b)(2)(B)'s prohibition against private violence motivated by the victim's race, religion, etc., and because of the victim's use of a public facility, etc.,25 falls comfortably within Congress's "power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and [its] authority to translate that determination into effective legislation." Jones, 392 U.S. at 440.26 Accordingly, we find that § 245(b)(2)(B), as applied in the case at bar,27 is a constitutional exercise of Congress's power under the Thirteenth Amendment.28

2. The Scope of 18 U.S.C. § 245(b)(2)(B).

The defendants argue, next, that even if § 245(b)(2)(B) is constitutional, it does not reach the conduct for which they were tried and convicted.

A. Streets as Public Facilities.

Section 245(b)(2)(B) limits its scope to acts committed against victims because they are "participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof." The defendants contend that their conduct does not come under the statute because Rosenbaum was not "participating in or enjoying any benefit, service, privilege, program, facility or activity" when he was attacked. In particular, the defendants argue that the Brooklyn city street on which Rosenbaum was attacked does not count as a "facility" within the meaning of § 245(b)(2)(B).29

The defendants begin with the proposition that "facility" as used in § 245(b)(2)(B) is an ambiguous term, so that we must, in deciding the statute's meaning, look beyond statutory language. See Schwegmann Bros., 341 U.S. at 395 (Jackson, J., concurring). Proceeding from this premise, they contend that in light of the legislative history of the statute and also of the rule of lenity (which asserts that ambiguities in criminal statutes should be resolved in a defendant's favor), see Kozminski, 487 U.S. at 952, we should find that a city street is not a "facility" for purposes of § 245(b)(2)(B). As a result, the defendants urge us to conclude that the fact that Rosenbaum was using a city street when the defendants attacked him is insufficient to sustain their convictions under the statute.30

This argument need not detain us long, for it stumbles at its initial premise. As the defendants themselves concede, "[t]he starting point in interpreting a statute is its language, for `[i]f the intent of Congress is clear, that is the end of the matter.'" Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (citing Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). Therefore, if § 245(b)(2)(B) is not ambiguous on its face, the defendants' remaining contentions fall away.31

Defendants' suggestions to the contrary notwithstanding, the term "facility" clearly and unambiguously includes city streets within its meaning. A "facility" is "something that promotes the ease of any action, operation, transaction, or course of conduct" or "something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or facilitate some particular end." Webster's Third International Dictionary 812-13 (1966). And a city street undoubtedly "promotes the ease of" travel and transportation within the city and is "built" and "constructed" to "perform [the] function [and] facilitate [the] end" of such travel and transportation. It therefore unambiguously falls within the clear meaning of the text of § 245(b)(2)(B). Accordingly, as the district court correctly held, President Street in Brooklyn qualifies as a "facility" for purposes of § 245(b)(2)(B).32

B. The Defendants' Motive and Intent.

In assessing the constitutionality of § 245(b)(2)(B), we held that this statute restricts its scope to acts of force or threat of force that involve two distinct kinds of discriminatory attitudes with respect to the victim -- first, a motive or an animus against the victim on account of her race, religion, etc., that is, her membership in a class or category the statute protects; and, second, an intent to act against the victim on account of his or her using public facilities, etc., that is, of his or her engaging in an activity that the statute protects.33

In this appeal, the defendants attack the application of these motivation and intent requirements to them on formal and substantive grounds. The formal challenge is that the district court in its charge to the jury combined the two requirements. The substantive challenge is that the evidence was insufficient with respect to the second. The defendants claim that there is no evidence of any motive or intent to impose punishment or dissuasion on Rosenbaum because of his enjoying a city street, i.e., because of his engaging in the statutorily protected activity.34 We consider each argument in turn.

(a) The Formal Challenge.

In its jury instructions, the trial court, over the defendants' objection, presented the dual requirements of motivation and intent imposed by § 245(b)(2)(B) as a single element of the crime that the statute creates. The court charged that "the government must prove that the defendants injured, intimidated or interfered with Yankel Rosenbaum because he was Jewish and because he was exercising his right to use the streets." (Tr. 3024 (emphasis added)). In their formal challenge, the defendants renew their objection to this charge and argue that by combining the two requirements into a single element, rather than instructing the jury that each constituted a separate and distinct element, the district court minimized the government's obligation to prove beyond a reasonable doubt that the defendants displayed both.

This argument is straightforwardly meritless. In its instructions to the jury, the district court expressly and repeatedly used the conjunctive "and" in referring to the statutory requirement that both class-based motivation and activities-based intent are required to sustain a conviction under § 245(b)(2)(B). Furthermore the court, in describing to the jury the statute's requirements, referred, in the plural, to "these motives or reasons," and presented the jury with an explicit and separate discussion of the second, activities-based intent requirement. (Tr. 3024). A conjunctive predicate is true only if both of its constituent predicates are true. And the proof requirements imposed on the government are not altered merely because the conjunction joins two predicates within one element of a charged crime rather than joining two separate, one-predicate elements. The district court made the need to establish the existence of both of these § 245(b)(2)(B) requirements plain. The defendants' formal argument that the district court's combining the two requirements into a single element of the crime was erroneous therefore fails.35

(b) The Substantive Challenge.

The defendants' substantive argument concerning the activities-based "because" requirement presents a more serious question. The defendants may be contending, in this connection, that the evidence presented at trial was inadequate to establish that they possessed an activities-based motive which they may be saying is needed to sustain a conviction under § 245(b)(2)(B). They could be claiming that there was no evidence presented at trial sufficient to allow a jury to conclude that they acted with animus against Rosenbaum on account of his using the public street on which he was attacked or that they intended to punish or dissuade Rosenbaum from using a city street.36 If this is their argument, they overstate the statute's requirements. As we have interpreted § 245(b)(2)(B), see supra, it mandates an intent to interfere with the victim's use of public facilities, but does not demand a specific motive to do so. Accordingly, we will read defendants' challenge as principally one to the sufficiency of the evidence of the requisite intent.

"A defendant challenging the sufficiency of the evidence bears a heavy burden." United States v. Pipola, 83 F.3d 556, 564 (2d Cir. 1996). In addressing such a challenge, "we must consider the evidence in the light most favorable to the government." United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998) (quotation marks omitted). And we "must credit every inference that could have been drawn in the government's favor." United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996) (quotation marks omitted). Accordingly, "[t]he jury's verdict must be sustained, `if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Gore, 154 F.3d at 40. Finally, "[t]hese principles apply whether the evidence being received is direct or circumstantial." Id.

Whereas overwhelming direct evidence was adduced to prove that the defendants displayed anti-Jewish animus of the sort contemplated by § 245(b)(2)(B), the trial produced no similar direct evidence that the defendants, in addition to being motivated by Rosenbaum's Judaism, also had an intent to prevent or dissuade his use of the city street. For this reason, the case at bar is distinguishable from some (but not all, see infra) other cases in which convictions under § 245 have been upheld against sufficiency challenges. Thus the defendants' sufficiency challenges in this case raise more difficult questions than those made and rejected in United States v. Franklin, 704 F.2d 1183, 1192 (10th Cir. 1983), and United States v. Lane, 883 F.2d 1484, 1496 (10th Cir. 1989). In both of these cases, which involved §§ 245(b)(2)(B) and (C), there was direct evidence that the defendants had, prior to committing their crimes, specifically objected, in one, to "racial mixing" at the park in which the crime was committed (Franklin) and, in the other, to a Jewish victim's employment as a radio talk show host (Lane).

In contrast to the evidence in Franklin and Lane, the only evidence on which the government can rely in the case at bar is the circumstantial evidence that the defendants and the mob they incited or belonged to sought out their victims exclusively on city streets, and that the natural and foreseeable consequence of the attacks, given the victims' locations, was both an interference with these victims' contemporaneous use of the streets and an intimidation and deterrence against their future use of such streets. Against this evidentiary backdrop, and immediately after repeating its instruction that § 245(b)(2)(B) required the jury to decide whether the defendants acted both because of Rosenbaum's Judaism and because of his use of the city streets, the district court instructed the jury that in order to find that § 245(b)(2)(B)'s "because" requirements were satisfied the jury needed to make

a decision about the defendants' state of mind. It is often impossible to ascertain or prove directly what the operation of a defendant's mind was.... [A] wise and intelligent consideration of all of the facts and circumstances shown by the evidence may enable you to infer what the defendant's state of mind was.... Therefore, you may rely on circumstantial evidence in determining the defendant's state of mind.

In this regard, I instruct you that you may infer that a person ordinarily intends all the natural and probable consequences of an act knowingly done. In other words, you may infer and find that the defendants intended all the consequences that a person, standing in like circumstances and possessing like knowledge, should have expected to result from the acts he knowingly committed.

I also instruct you that the mere presence of a defendant where a crime is being committed, even coupled with knowledge that a crime is being committed, or the mere acquiescence by a defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish guilt of the crime charged here.

(Tr. 3024-36).

The jury convicted the defendants in response to this instruction, and specifically to the statement that "you may infer and find that the defendants intended all the consequences that a person, standing in like circumstances and possessing like knowledge, should have expected to result from the acts he knowingly committed."37 (Tr. 3024-36). Consequently in presenting their sufficiency challenges, the defendants must be arguing, in effect, either (1) that the general inference of intent that this instruction contemplates is impermissible, or (2) that even if the general inference is permissible, a reasonable person standing in the defendants' shoes would not have expected his or her actions to interfere with the victims' use of the public streets or to intimidate or deter the victim from engaging in this protected activity, or (3), more broadly, that a finding of intent is not enough and that specific motive or animus to punish or retaliate against the victim for his use of the streets is needed.

Once the defendants' sufficiency challenges are understood in this way, it becomes clear that their arguments in this connection must be rejected. To begin with, it is well-settled that, as a general matter, criminal intent may be proven by circumstantial evidence. See United States v. Atehortva, 17 F.3d 546, 550 (2d Cir. 1994). And, it is equally well established that, while a jury instruction in a criminal case that the law presumes that a person intends the ordinary consequences of his voluntary acts violates due process, see Sandstrom v. Montana, 442 U.S. 510 (1979), an instruction that merely permits a jury to infer that an accused intends such consequences of such acts is acceptable, see Francis v. Franklin, 471 U.S. 307, 315 (1985). The instruction in the case at bar, which contained the language "you may infer," is unambiguously of the latter, and generally permissible, variety.38

The specific inference that the district court instructed the jury that it might draw -- from an attack on a city street by participants in a mob roving the streets, to a specific intent to interfere with, intimidate, or dissuade the street-based activities of the victim of the attack -- is, moreover, also permissible. Whether a particular inference falls within the general rule that a jury may conclude that an actor intended foreseeable consequences of his actions depends upon whether a jury's conclusion that a consequence of the actions is foreseeable is "rooted in reason or common sense." Payne v. LeFevre, 825 F.2d 702, 707 (2d Cir. 1987). Here, the defendants' actions clearly had the foreseeable effect of interfering with Rosenbaum's contemporaneous and immediate use of the city street on which he was attacked, and had this effect in a manner that could not possibly go unnoticed. Furthermore, the long-standing and intimate connection between public violence and racial and religious oppression, see supra pages 189-91, and the fear felt by victims of violence, in particular by those who have been singled out on the basis of their race or religion, convince us that any connection the jury might have drawn between the defendants' conduct and their intent to interfere with or deter future street use by Rosenbaum and by people similarly situated was firmly rooted in reason and common sense.

Moreover, as indicated earlier, we believe that the statute, while concerned with racial motivation and animus, did not impose a similar motivation requirement with respect to interference with participation in the relevant activities. That is, while we agree that a class-based motivation is required by the statute, proof of an activities-based intent is enough. We thus reach a conclusion similar to that presented in the Senate Committee Report, namely that evidence that a victim was attacked while actually engaged in a protected activity would ordinarily "be enough to send the [question of activities-based intent] to a jury, because such facts would afford the basis for an inference that the assailant did intend to interfere with the protected activity." S. Rep. No. 90-721 at 9, reprinted in 1968 U.S.C.C.A.N. at 1844.39 And we reject the defendants' challenges to the sufficiency of the evidence presented against them.

We note, as a final matter, that we are not alone in reaching this conclusion in a case in which the only evidence of activities-based intent is circumstantial. At least two other Circuit Courts have done the same pursuant to § 245. Thus the Sixth Circuit, upholding a conviction under § 245(b)(2)(F), concluded that the evidence that a defendant directed racial slurs at his victim while they were both in a night club was sufficient to allow a jury to determine that the defendant acted "because" the victim was enjoying the services of a public place of entertainment. United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986). It reached this result on the ground that:

[t]he jury could... have found that [the defendant's] remarks were intended to make [the victim's] remaining on the premises uncomfortable and embarrassing and to intimidate and dissuade him from remaining on the premises....

Ebens, 800 F.2d at 1429. Similarly, the Eighth Circuit held that even where there was no specific evidence of activities-intent and a defendant argued that an attack "only incidentally" occurred at a federal swimming area, the defendant's sufficiency challenge to his conviction under § 245(b)(2)(B) must be rejected. In such circumstances, the court stated: "[I]t was for the jury to infer that the defendant intended to intimidate [his victim] and interfere with his use of the governmental facilities at [the swimming lake]." United States v. Price, 464 F.2d 1217, 1218 (8th Cir. 1972).40

B. The Selection of the Jury.

Having determined that § 245(b)(2)(B) is a constitutional exercise of Congress's powers under the Thirteenth Amendment, that the statute applies to behavior of the type that the government charged the defendants with committing, and that the evidence presented at trial was sufficient to allow the jury to return its verdict of conviction, we turn now to addressing the defendants' challenges to the district court's actions in empaneling the jury that convicted them.

As we have described, see supra pages 171-72, the district court expressed concern throughout the jury selection process that any jury that was finally empaneled should "represent[] the community." (Tr. 759). This meant to the district court that the jury should contain appropriate numbers of African Americans and Jews. Although the district court was clearly interested in seating close to an equal number of African Americans and Jews on the jury, the makeup of the jury pool -- which had very few Jews in it -- caused the district court's concern for such racial and religious balance to express itself principally, although by no means exclusively, in the form of efforts to prevent the final jury from containing too many African Americans and too few Jews.

In this respect,