US judge again drops case against alleged white supremacists citing unequal targeting

A federal judge in Santa Ana rejected criminal charges Wednesday against two men accused of being part of a white supremacist group and conspiring to incite violence against political protesters in California.

It was the second time U.S. District Judge Cormac J. Carney dismissed charges against Robert Rundo and Robert Boman of Torrance. In 2018, the two were charged on one count of conspiracy to violate the Anti-Riot Act and another for aiding and abetting. The charges were dismissed in 2019, but brought back in 2021 following an appeal. U.S.A. v. Rundo et al., 2:18-cr-00759 (C.D. Cal., filed Nov. 11, 2018).

Tyler Laube, a third man accused of being a member of the group called Rise Above Movement, also known as RAM, pleaded guilty last year to one count of interference with a federally protected right without bodily injury. His sentencing is scheduled for March.

Carney on Wednesday granted the defense's motion to dismiss the case against Rundo and Boman on grounds that the government was unfairly targeting them while members of "far-left extremist groups, such as Antifa," were not prosecuted, the order stated.

"The government cannot prosecute RAM members such as defendants while ignoring the violence of members of Antifa and related far-left groups because RAM engaged in what the government and many believe is more offensive speech," Carney wrote. "By many accounts, members of Antifa and related far-left groups engaged in worse conduct and in fact instigated much of the violence that broke out at these otherwise constitutionally protected rallies to silence the protected speech of the supporters of President Trump. That is constitutionally impermissible."

In their second motion, the defendants "argue the First Superseding Indictment also must be dismissed because the government selectively prosecuted them for their far-right, white supremacist speech and beliefs," Carmey wrote. "The equal protection component of the Due Process Clause of the Fifth Amendment does not allow the government to prosecute certain individuals over similarly situated people on unjustifiable bases such as race, religion, or the exercise of constitutionally protected rights."

"Rightly, out of respect for the separation of powers," he wrote, referring to the defense argument, "the bar is high for a court to exercise judicial power over charging decisions, a special province of the executive branch. To meet that bar criminal defendants must submit clear evidence that their prosecution violates equal protection. Defendants have done so here."

Federal Public Defender Julia Deixler represented Rundo, and Peter C. Swarth of West Hills represented Boman. They did not respond to phone and email requests for comment by press deadline Wednesday.

The case was prosecuted by Assistant U.S. Attorneys Kathrynne N. Seiden and Solomon Kim.

Thom Mrozek, a public affairs officer for the U.S. Attorney's Office in the Central District, said in an email late Wednesday: "We're not offering any substantive comment at this time. ... I can tell you that we filed a notice of appeal soon after the hearing, and we are considering all of our options."

The indictment claimed that Rundo is the founding member of RAM and that the group used the internet to message people and post videos of themselves coordinating combat training to "prepare to engage in violence at political rallies and organized demonstrations."

The group, according to the indictment, promoted itself as a "combat-ready, militant group of new nationalist white supremacy and identity movement."

The indictment stated Rundo and Boman led attacks at political rallies in 2017 at Huntington Beach, Berkeley and San Bernardino. Some months later, the prosecutors said, the defendants celebrated by posting photos and videos of RAM members assaulting protesters.

In 2019, Carney dismissed the case on grounds that the Anti-Riot Act was unconstitutionally overbroad.

In 2021, a 9th U.S. Circuit Court of Appeals panel - with Circuit Judges Ferdinand F. Fernandez, Richard A. Paez, and U.S. District Judge Jon S. Tigar of San Francisco sitting by designation - returned the case to Carney.

"The panel held that the unconstitutional provisions of the Act are severable, and that with such severance, the Act is not facially overbroad, but rather prohibits unprotected speech that instigates an imminent riot, unprotected conduct such as committing acts in furtherance of a riot and aiding and abetting of that speech or conduct," the appellate opinion stated. U.S.A. v. Rundo et al., 19-50189 (Cal. App. 9th Dist. Mar. 4, 2021).