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
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