Friday, May 23, 2014

The "FedEx Driver," the Website and Blackmail

After a jury convicted him of blackmail in violation of Kansas Statutes § 21-3428 and the trial judge sentenced him to “24 months' probation with an underlying 12–month prison term”, Bryan Gile appealed.  State v. Gile, 321 P.3d 36 (Kansas Court of Appeals 2014). The judge also imposed a condition of probation that barred Gile from “contact with the Rein family” and discussing “them on the internet”.  State v. Gile, supra.
The Court of Appeals begins its opinion by explaining how the prosecution arose:
Irwin `Skip’ Rein . . . and his wife Barbara have a son named Bret. Bret and his ex-wife, Michelle Gile, had two sons, T.R. and C.R. Michelle and her second husband, Bryan Gile, then had three children that included A.G. and E.G. Skip co-founded Bernstein–Rein Advertising in Kansas City, Missouri in 1964. . . . The agency remains in operation at its original location . . . and has 170 employees. Skip relinquished his ownership interest in the agency around 1997.

Although he has no official responsibilities, Skip has an office, attends meetings, and talks with employees. Skip was aware T.R. had been charged in 2007 with the sexual assault of one of Gile's children, but was not aware of any allegations against C.R. Skip did not know the specifics because he was not involved in T.R.'s case. He did not pay for T.R.'s attorney, and he appeared in court only once, the day T.R.'s probation was shortened.

In March 2010, a letter from Gile was delivered to Skip's home in Phoenix, Arizona. Skip returned home to a teary-eyed Barbara, who . . . read the letter. Later that month, Skip and Barbara returned to their home in Leawood, Kansas, to find the same letter had been delivered there. A copy of [it] was read to the jury and admitted into evidence. In the letter, Gile stated that he would `make no attempts to . . . expose any civil or criminal wrong doing, toward any person in [Skip's] family, including [T.R.], Bret, and [C.R.]’ if Skip would enter into a `settlement’ consisting of a `home’ for Gile and his children, restoration of his `personal belongings lost in bankruptcy,’ and `funding’ for any counseling and treatment his children may need.

Gile went on to state that `Bernstein–Rein’ and `the Rein name’ were respected because `the truth within the family ha[d] not been revealed.’ Gile further stated that his evidence . . . would `attract attention from every media voice.’ Finally, Gile stated that `a storm’ -- including `negative publicity of a corporate financial powerhouse’ -- would come if Skip rejected the proposed settlement.
State v. Gile, supra.
The court also explained that Skip contacted
an attorney about Gile's letter and informed his former partner, Mr. Bernstein, about it as well. Skip filed a police report in Colorado. The investigating officer visited Gile, who explained he was just trying to make an offer and promised not to contact Skip again. No charges were filed because the district attorney viewed the case as an offer rather than extortion. After receiving the letter, Skip and Barbara became withdrawn, talking about the case daily. 

State v. Gile, supra.  It also noted Skip testified that if Gile had "followed through" on
the threats he made in his letter . . ., Bernstein–Rein could lose clients; Bret and his children could lose their friends and jobs; and T.R.'s life would be ruined despite his successful completion of rehabilitation through the juvenile court system. . . .

Skip explained that he and Barbara considered moving from the Kansas City area out of fear of `crazies’ on the internet. Skip did not provide the house, personal property, or money that Gile requested.
State v. Gile, supra. 
Gile took the stand at his trial and testified that he lived in Colorado with
his new wife, Penny. He has joint custody of A.G. and E.G. They live with Michelle in Kansas, but he is seeking residential custody. A.G. reported being sexually assaulted by T.R., who had lived with Gile in the early months of 2006. Gile contacted the police, and T.R. was charged with criminal sodomy. T.R. ultimately pled to the reduced charge of attempted indecent liberties. Gile opined that A.G. was denied `fair justice’ q because T.R.'s sex offender status was made private and she was only given $900 in restitution, which did not cover the diapers she had to wear until age 13, let alone her counseling. Also, E.G. did not get the counseling he needed because C.R. was never charged.

At the time of the assaults, Gile was a FedEx driver, working long, overnight runs. He felt he needed to give his children the best chance of recovery, so he switched to shorter runs, taking an annual pay cut of $22,000. This enabled him to spend a lot of time with his children and attend their counseling sessions. Because A.G. and E.G. frequently soiled themselves following their assaults, Gile had to buy diapers, new clothing and bedding, and cleaning supplies. Gile admitted he bought four-wheeling equipment -- truck, trailer, machines, and protective gear -- to give his children an outdoor escape. Gile declared bankruptcy in mid–2008. Gile testified that A.G. and E.G. had shown very little improvement and were `far from finding some kind of closure.’
State v. Gile, supra. 
The court then explains that “[h]iring an attorney was cost-prohibitive” for Gile, so, in an effort “to get justice for his children”, he conducted “his own research”.  State v. Gile, supra.  On a federal court’s website, he found a document that said “`[b]efore you file your case, try talking to the person . . . you feel has done something wrong or try sending a letter asking the person . . . to fix the problem.’” State v. Gile, supra.  From the opinion, it sounds like Gile testified that this document “spurred” him to write to Skip “before pursuing a civil and criminal case.”  State v. Gile, supra.  He said he wrote Skip “to negotiate” because he “`sincerely’” believed that Skip “`was very much involved in his grandchildren getting off or getting very little criminal charges.’” State v. Gile, supra. 
Gile also testified that the prosecutor told him
that if Skip had not negotiated, using his reputation or financial status, justice would have been served and C.R. would have been charged. If Skip did not respond to his letter, Gile planned to publicize `nothing but the facts of what has happened in this case . . . so people would know the truth, the morality what is going on in this county right here.’ Gile refused to admit his goal was to subject the Rein family to public ridicule, maintaining it was simply to reveal the facts about the harm to his family.

Gile did . . . acknowledge that his publicizing of the facts would subject the Rein family to public scrutiny, badly tarnish their names and reputations, and deeply embarrass them.
State v. Gile, supra. 
Detective Shannon Leeper from the Lexena Police Department testified that she 
investigated a sexual abuse case in 2007 involving Gile's children. Leeper determined T.R. had victimized 9-year-old A.G. and recommended that he be prosecuted for rape, aggravated indecent liberties, and aggravated criminal sodomy. Although she was not permitted to interview C.R., Leeper determined he had victimized 5-year-old E.G. and recommended he be prosecuted for aggravated indecent liberties and aggravated criminal sodomy. Ultimately, the district attorney's office charged T.R. but not C.R. Leeper testified that in her 7 years in the investigations division, C.R.'s was the first child sexual abuse case that she had seen go uncharged.
State v. Gile, supra. 
Michelle, who divorced Gile in 2004, testified they were living together when T.R.
victimized A.G. . . . Upon learning about the allegations against T.R., Gile spoke to A.G. to confirm the facts and then Michelle filed a report with the city. Michelle testified that A.G. was still having a difficult time dealing with her sexual abuse, but E.G. was doing great and excelling at school.
State v. Gile, supra. 
On appeal, Gile argued that “the evidence was insufficient to convict him of blackmailing Skip Rein.” State v. Gile, supra.  The Court of Appeals began its analysis of his argument by noting that when the
sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.   State v. Qualls, 297 Kan. 61, 298 P.3d 311 (Kansas Supreme Court 2013).
State v. Gile, supra. 
It also explained that Gile was charged with blackmail, and to obtain a conviction, the
State was required to prove beyond a reasonable doubt that (1) Gile threatened to communicate accusations or statements about Skip and/or his grandchildren that would subject Skip and/or his grandchildren to public ridicule, contempt, or degradation; (2) Gile did so to attempt to gain something of value from Skip; and (3) Gile's act occurred on or about March 9 and 29 of 2010. Kansas Statutes § 21–3428.
State v. Gile, supra. 
The Court of Appeals then found, first, that

[w]hen viewed in the light most favorable to the prosecution, the trial transcript contained direct evidence that Gile threatened to communicate accusations or statements about Skip and his grandchildren, and that those statements would subject them to public ridicule, contempt, or degradation.

As evidenced by the following excerpts, Gile's letter contained a threat to both file a lawsuit and tell the media about the sexual abuse of his children at the hands of Skip's grandchildren, statements that would obviously subject the Reins to public ridicule:

`I am ready to take civil, and criminal action on [T.R.], Bret, and [C.R.], that will, after all evidence, badly tarnish their names . . . as well as any reputation they may uphold. . . .’

`I further assume you do not desire any more embarrassment to be rendered upon them . . .’

`If you agree to a settlement, . . . I will make no attempts to seek and/or expose any civil or criminal wrong doing, toward any person in your family. . . .’

`. . . I will seek and find every media outlet available, local and abroad, with overwhelming evidence.’
State v. Gile, supra. 
It also noted that Gile testified that if Skip had not 
responded to his letter, he planned to publicize `nothing but the facts of what has happened in th[e] case . . . so people would know the truth, the morality what is going on in this county right here.’ Gile refused to admit that his goal was to subject the Rein family to public ridicule, maintaining it was simply to reveal the facts about the harm to his family.

Gile did, however, acknowledge that his publicizing of the facts would subject the Rein family to public scrutiny, badly tarnish their names and reputations, and deeply embarrass them. Therefore, a rational factfinder could have found Gile guilty beyond a reasonable doubt. See State v. Brooks, 46 Kan.App.2d 601, 265 P.3d 1175 (Kansas Court of Appeals 2011) (sufficient evidence of blackmail where defendant threatened to publicize his ex-wife's affair with a married coworker by giving copies of their emails to her employer and the coworker's wife). . . .  
State v. Gile, supra. 
For this and other reasons, the Court of Appeals affirmed Gile’s conviction.  State v. Gile, supra.  It also, though, vacated the probation condition the trial judge imposed that prohibited Gile “from commenting about the Rein family on the internet” because the court found it “is not reasonably related to the crime of conviction.”  State v. Gile, supra. 
The Court of Appeals explained that 
Skip Rein is . . . entitled to protection from contact with or revictimization by Gile, and the district court provided such protection. Gile was ordered to have no contact with the Rein family and to refrain from violating any laws, so Gile will be in violation of his probation if he contacts or communicates false information about the Rein family. See Kansas Statutes § 21–6103(a)(l) (`Criminal false communication is . . . [c]ommunicating to any person, by any means, information that the person communicating such information knows to be false and will tend to: [A] Expose another living person to public hatred, contempt or ridicule; [or][B] deprive such person of the benefits of public confidence and social acceptance.’).

The probation condition forbidding Gile from making any comment (not just blackmail threats) about any member of the Rein family (not just Skip Rein) on the internet (in-person or telephone comments permitted) is not reasonably related to the rehabilitation of Gile, the protection of the public, and the nature of blackmail and is therefore unconstitutional. . . .

State v. Gile, supra.  Essentially, the court found that the latter component of the probation condition violated Gile’s 1st Amendment rights. State v. Gile, supra. 

No comments: