Wednesday, December 04, 2013

The Talk Show Host, the Email and "True Threats"

Ellisa Martinez pled guilty for knowingly transmitting a threatening communication in violation of 18 U.S. Code § 875(c), but reserved her right to appeal the U.S. District Court Judge’s denial of her motion to dismiss the indictment against her.  U.S. v. Martinez, 2013 WL 6182973 (U.S. Court of Appeals for the 11th Circuit 2013). She entered the plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure.

After she entered the plea, the district court judge who had the case “sentenced Martinez to two years' imprisonment, followed by three years' supervised release” and ordered her to pay “$5,350 in restitution for the costs incurred securing and safeguarding the schools and students in Broward County, Florida, as a result of her offense.”  Brief for the United States, U.S. v. Martinez, 2012 WL 2871505; U.S. v. Martinez, supra.  In the plea, Martinez “conceded that she knowingly and willfully sent the November 10th email” described below. U.S. v. Martinez, supra.

According to the opinion, the case began on November 10, 2010, when

talk-show host Joyce Kaufman at WFTL radio received an anonymous email form-response stating:

`Dear Ms. Kaufman I was so thrilled to see you speak in person for congressman elect west. I was especially exited [sic] to hear you encourage us to exercise our second amendment gun rights. I felt your plan to organize people with guns in the hills of Kentucky and else where was a great idea. I know that you know one election is not enough to take our country back from the illegal aliens, jews, muslims, and illuminati who are running the show. I am so glad you support people who think like me. i'm planning something big around a government building here in Broward County, maybe a post office, maybe even a school, I'm going to walk in and teach all the government hacks working there what the 2nd amendment is all about. Can I count on your help? you and those people you know in Kentucky? we'll end this year of 2010 in a blaze of glory for sure. thanks for your support mrs kaufman. what does sarah say, don't retreat, reload! let's make headlines girl!’

Several hours after this email was sent, an anonymous woman called WFTL. She told station officials that her husband had sent the prior email, that he was mentally ill, and that he was now planning to open fire at a nearby school. The anonymous woman implored the station to broadcast a plea asking her husband not to carry out the shooting.

These communications prompted the Pembroke Pines Police Department to institute a `Code Red’ lockdown on all Broward County schools. The Police Department also shut down several other public buildings, requiring officers to work overtime securing the facilities. Ultimately, however, no shooting occurred and the anonymous woman sent no further communications.

U.S. v. Martinez, supra.

The prosecution’s brief on appeal provides a few more details:

At 8:40 a.m. on the same date, a call from Martinez's cellular telephone was received by WFTL Radio. . . . The unknown female caller claimed to be the wife of Billy Johnson who had sent the e-mail to Joyce Kaufman. . . . The caller stated that her husband was bi-polar and was going to shoot up a school in Pembroke Pines, Florida. . . She requested that the radio station broadcast a plea to her ex-husband not to carry out the shooting . . . The call was traced to Martinez's cell phone and a location that included Martinez's residence. . . .

When Federal Bureau of Investigation Special Agent Steven Miller confronted Martinez, she told him she had lost her cell phone in the ladies' restroom at the Starz Café on State Road 54 at approximately 8 a.m. on November 10, 2010. . . . When she returned to the café between 11 a.m. and 1 p.m. on the same day, she found the telephone where she had left it. . .

A review of cellular telephone records showed telephone calls were made from Martinez's cell phone at 10:01 a.m., 11:40 a.m., and 1:01 p.m. on November 10, 2010, to Mary Inman. . . . Inman told FBI agents Martinez had called her at approximately those times, first agreeing to a meeting at 1 p.m. that day, then advising that she was returning from dropping her husband off at the airport, and inally stating she would be about five minutes late. . . . A review of the surveillance tape from the Starz Café showed Martinez had not been in the café between 8 a.m. and 11a.m. on November 10, 2010. . . .

Brief for the United States, supra.

The brief also explains that FBI agents got a search warrant and seized Martinez’s

laptop and desktop computers. . . . There was no e-mail on the laptop computer and all internet history prior to the afternoon of November 10, 2010 had been erased. . . . Nevertheless, a forensic examination of the computer revealed that the user of the laptop had signed into Martinez's Facebook page before, during and after she visited the WFTL website to which the threats were sent. . . . The user also googled a search for whether Pembroke Pines was in Broward or Miami-Dade County and whether it was a good area, and had accessed the Pembroke Pines website, all between 8:37 and 8:38 a.m. on November 10.

Brief for the United States, supra.

On appeal, Martinez argued that (i) “her indictment was constitutionally deficient under Virginia v. Black, 538 U.S.343 (2003), because it did not allege she subjectively intended to convey a threat to injure others” and (ii) that if § 875(c) “does not require subjective intent, the statute is unconstitutionally overbroad.”  U.S. v. Martinez, supra.

The Court of Appeals began its analysis of her first argument by explaining that while the 1st Amendment usually prevents the government from criminalizing speech based on

its message or viewpoint, . . . the 1st Amendment's free-speech protections are not absolute.  See Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942) In certain narrowly drawn categories, the Government may permissibly restrict speech on the basis of content. . . .These categories of unprotected speech do not require case-by-case balancing because the harms they impose `so overwhelmingly outweigh[ ]’ any 1st Amendment concerns that the “balance of competing interests is clearly struck.” New York v. Ferber, 458 U.S. 747 (1982).

`True threats’ are one such category of unprotected speech. U.S. v. Alvarez, 132 S.Ct. 2537 (2012). Although statutes penalizing speech `must be interpreted with the commands of the 1st Amendment clearly in mind,’ Watts v. U.S., 394 U.S. 705 (1969), objective threats of violence contribute nothing to public discourse and enjoy no 1st Amendment protection. . . . The critical issue for the true threats doctrine is distinguishing true threats from mere political hyperbole; while the former are outside the 1st Amendment, the latter is entitled to full constitutional protection. . . .

U.S. v. Martinez, supra.

As noted above, Martinez claimed whether speech constitutes a true threat under the Supreme Court’s decision in Virginia v. Black is based on the speaker’s subjective intent, i.e., whether he/she meant the language as a threat.  U.S. v. Martinez, supra.  The Court of Appeals disagreed, noting that the “true threats doctrine took shape” in the Supreme Court’s decision in Watts v. U.S., 394 U.S. 705 (1969). U.S. v. Martinez, supra.  The Watts Court based its conclusion that Watts’ speech did not constitute a true threat “on the objective characteristics of the speech and the context in which it was delivered -- the Court did not speculate as to the speaker's subjective mental state.” U.S. v. Martinez, supra.  The Court of Appeals noted that “most federal courts of appeals defined true threats according to an objective standard.”  U.S. v. Martinez, supra. 

Martinez claimed the Supreme Court’s decision in Virginia v. Black “altered the Watts framework for true threats and tacitly overruled our case law defining true threats according to an objective standard.”  U.S. v. Martinez, supra. The Court of Appeals noted, though, that four of the U.S. Circuit Courts of Appeal have rejected this interpretation of Virginia v. Black, and have continued to apply an objective test to the true threats analysis. U.S. v. Martinez, supra.  It also explained that

[c]ontrary to Martinez's argument, Black did not import a subjective-intent analysis into the true threats doctrine. Rather, Black was primarily a case about the overbreadth of a specific statute -- not whether all threats are determined by a subjective or objective analysis in the abstract. . . . When interpreting a statute like § 875(c), which articulates no explicit mensrea requirement and is therefore treated as a general-intent crime, . . . Black leaves our analysis and objective standard unaltered.

Black's definition of true threats is fully consistent with a general-intent standard examining only the objective characteristics of the speech act. . . . General-intent crimes require only that the defendant actually intend to perform the prohibited act; she need not subjectively intend the precise purpose or results of the crime. . . . Black defined true threats as those statements a speaker means to communicate -- i.e., knowingly communicate -- that contain a serious expression of violent intent. . . .

U.S. v. Martinez, supra.  For more on general intent, check out this Wikipedia entry.

The Court of Appeals therefore rejected Martinez’s first argument and held that “when the Government shows that `a reasonable person would perceive the threat as real,’ a true threat may be punished and ‘any concern about the risk of unduly chilling protected speech has been answered.’” U.S. v. Martinez, supra (quoting U.S. v. Jeffries, 696 F.3d 473 (U.S.Court of Appeals for the 6th Circuit 2012)).

It then took up Martinez’s second argument, “that if subjective intent is not required for prosecution under§ 875(c), the statute is unconstitutionally overbroad.”  U.S. v. Martinez, supra.  The Court of Appeals explained that

[u]nder the 1st Amendment, a statute is overbroad if `a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep. U.S. v. Stevens, 559 U.S. 460 (2010).  In making this determination, we first construe the statute so that its meaning is clear. U.S. v. Williams, 553 U.S. 285 (2008). We then determine whether the statute, as construed, `criminalizes a substantial amount of protected expressive activity.’  U.S. v. Williams, supra.

U.S. v. Martinez, supra.

The court noted that § 875(c) states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”  U.S. v. Martinez, supra.  It then explained that the

actus reus of the statute is transmitting a threat -- that is, a true threat. . . . A true threat is determined from the position of an objective, reasonable person, . . . unless a particular offense involves `intimidation.’ Virginia v. Black, supra. Section 875(c) . . . is silent as to mens rea, requiring neither an intent to place the victim in fear of bodily harm or death, nor any other showing of specific intent. . .

As a result, § 875(c) is a general-intent offense that requires the Government to show (1) the defendant transmitted a communication in interstate or foreign commerce, (2) the defendant transmitted that communication knowingly, and (3) the communication would be construed by a reasonable person as a serious expression of an intent to inflict bodily harm or death. . . .

Construed this way, § 875(c) does not sweep up a `substantial amount of protected expressive activity.’ . . . To the contrary, because we construe the statute as applying to true threats -- and only true threats -- § 875(c) on its face criminalizes no protected expressive activity. After all, true threats fall `outside the 1st Amendment,’ R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), since they are `so intertwined with violent action that’ they `essentially become conduct rather than speech,’ U.S. v. Francis, 164 F.3d 120 (U.S. Court of Appeals for the 2d Circuit 1999), inflicting injury on the listener ‘”by their very utterance,”” U.S. v. Jeffries, supra (quoting Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)).

U.S. v. Martinez, supra.

The court therefore held that

[b]ecause true threats are unprotected speech, and because our reading of § 875(c) limits that statute to true threats, Martinez has not demonstrated a `realistic danger’ that § 875(c) will `significantly compromise recognized First Amendment protections.’ City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984). Accordingly, we uphold the statute in the face of Martinez's overbreadth claim.

U.S. v. Martinez, supra.  So the court affirmed Martinez’s conviction

If you are interested, you can read more about the case in the articles you can find here and here.

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