Text Messages, Hearsay and Attempting to Promote Prostitution

After John Elwood Causey, Jr. was convicted of “attempting to promote prostitution” in violation of Oregon Revised Statutes § 167.012(1)(d)”, he appealed.  State v. Causey, 2014 WL 4100645 (Court of Appeals of Oregon 2014).

According to the Court of Appeals’ opinion, this is how the prosecution arose: 

On May 4, 2010, Officer Miller was working undercover as a decoy on a prostitution sting in Portland. While Miller was at a bus stop, Foster and her passenger, [Causey], drove up to Miller and asked her if she needed a ride.
 Miller recorded the conversation that ensued between Miller, Foster, and [Causey]. Based on her training and experience, Miller concluded [Causey] was trying to recruit her to work as a prostitute.
 Miller contacted officers Hertzler and Kula, who were also in the area, and they subsequently arrested [Causey] on the charge of promoting prostitution. During the arrest, Hertzler seized a cell phone from [Causey’s] pocket. Kula also seized two cell phones from the vehicle Foster was driving, one of which he later determined belonged to Foster.
 After obtaining a search warrant, Kula searched all three phones. He discovered a series of text messages between [Causey] and Foster, as well as text messages between [Causey] and a second woman and pictures of women in suggestive poses. The pictures led Kula to an escort service website which contained pictures of Foster in suggestive poses.

State v. Causey, supra.

At Causey’s trial, the prosecution “introduced the following text-message exchanges between [him] and Foster”.  State v. Causey, supra.

March 10, 2010

Foster: `I'm at Chestnut Tree Hotel, Room 16. Call when done[.]’

[Causey]: `Gotcha, Mama.’

Foster: `This guy's late. How long should I wait for this guy before I give up?’

[Causey]: `Chill at the bar for about 15 minutes. Then give him a call. Have a drink or two.’

Foster: `We never exchanged numbers. We've only been talking through email here and there. I just ordered a shot. If he's not here by 1:30, I'll call you. If you're at your mom's maybe try checking my email and seeing if he sent me anything.’

Foster: `He just got here. I'll call you.’

[Causey]: “Run him for that.”

Foster (approximately 30 minutes later): `I'm ready to go in five minutes.’

April 28, 2010

Foster (after informing [Causey] that she is in room 110): `Just finished. He's getting dressed. The hotel bitch is being nosey. How long before you're here?’

[Causey]: `About 15 minutes.’

May 2–3, 2010

Foster (after informing [Causey] she is in room 235): `He's here.’

Foster (early the next morning): `I can go if you're ready to [come] get me. I'm about to get dressed now.’

State v. Causey, supra.  At the trial, “Kula testified that he believed that the content of the text messages clearly showed a pimp/prostitute relationship.” State v. Causey, supra.  

On appeal, Causey argued, among other things, that the trial judge erred in admitting “text messages from two women that were recovered from [his] cell phone" because they were hearsay. State v. Causey, supra.  

According to Causey, “the admission of the text messages violated [his] confrontation rights under Article I, section 11, of the Oregon Constitution.”  State v. Causey, supra.  The Court of Appeals noted that, “[u]nder the usual paradigm,” it would first consider Causey’s “constitutional claims only if it is necessary to do so”.  State v. Causey, supra.

The Court of Appeals began its analysis of Causey’s first argument by explaining that

[OregonEvidence Code] 801(3) states, ‘”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”’ The reason for the statutory exclusion is that hearsay statements are generally considered to be untrustworthy. State v. Cazares–Mendea/Reyes- Sanchez, 350 Or 491, 256 P3d 104 (Oregon Supreme Court 2011).

As noted above, the state's argument is that the text messages from Foster were admissible because they were not offered by the state for the truth of the matter asserted but instead offered only to prove that [Causey] had knowledge of Foster's prostitution activities.

State v. Causey, supra.

The Court of Appeals rejected the prosecution’s

argument for the following reasons. Although the text messages may have indicated that [Causey] had knowledge of Foster's activities, in order for him to have that knowledge, the content of those text messages had to be true. Although the state did not need to prove that Foster was at a particular time and place charging a man $500 for her services, the state did need to prove that Foster was meeting a man for sex in exchange for money.

The text messages are relevant because they are circumstantial evidence of an `act or enterprise of prostitution’ required under Oregon Revised Code §167.012(l)(d). For the text messages to be relevant as circumstantial evidence, however, the jury was required to accept the truthfulness of the content of those messages. The relevance was not that the statements were made, but the content of the statements.

State v. Causey, supra.

It also explained that

[i]n addition, the text messages were then used by the state as the basis for Kula's expert opinion testimony that the messages were `highly consistent and indicative of a pimp/prostitute relationship.’ In order for Kula to testify to that opinion, Kula had to accept the truthfulness of the content of the text messages.

In fact, the judge commented that the state `had to prove an enterprise, don't they?’ More importantly, in order for the jury to accept Kula's opinion and make a similar inference, the jury had to accept the truthfulness of the content of the text messages.

State v. Causey, supra.

The Court of Appeals therefore held that

[b]ecause the text messages were out-of-court statements and their relevance depended on the truth of the content of the messages, the messages were hearsay and not admissible. The trial court erred in admitting the text messages, and that error requires that we reverse and remand for a new trial.

State v. Causey, supra.  In two footnotes appended, respectively to each of the above sentences, the Court of Appeals noted, first, that the prosecution did “not argue that the text messages were admissible under any exception to the rule against hearsay.”  State v. Causey, supra.  You can, if you are interested, find a summary of the exceptions in this Wikipedia entry.

In the second footnote, the court explained that the prosecution did “not argue that the admission of the text messages was harmless error."  State v. Causey, supra.  In other words, as Wikipedia explains, the prosecution did not argue that the error in admitting the text messages did not, or cannot conclusively be determined not to have, influenced the outcome of the case, perhaps because that simply was not true. 

If you are interested, you can read a little more about the facts in the case in the news stories you can find here and here.

Child Molestation, Dropbox and the 4th Amendment

After “a bench trial on stipulated facts” in the Superior Court of Pima County, Michael Pharis was convicted of seven counts of sexual exploitation of a minor under the age of fifteen, two counts of child molestation, and seven counts of sexual conduct with a minor under the age of fifteen”, the trial judge sentenced him “to a combination of concurrent and consecutive, presumptive prison terms totaling 366 years.”  State v. Pharis, 2014 WL 4057721 (Arizona Court of Appeals 2014). Pharis appealed arguing, among other things, that the trial judge “erred by denying his motion to suppress evidence.”  State v. Pharis, supra. 

The Court of Appeals began its opinion by outlining how the prosecution arose:”

In November 2012, D.S., Pharis's then girlfriend, became suspicious of Pharis's relationship with his former girlfriend, S.S. Pharis and S.S. have a child together, A.P., who was four years old at the time. D.S. used the `lost password’ function on Dropbox to obtain and send a temporary password for Pharis's account to his e-mail, which he had left open on her laptop. Using the temporary password, D.S. opened Pharis's Dropbox account, where she saw `multiple video images of [Pharis] performing sexual acts on [A.P.]’

After telephoning S.S., D.S. took her laptop to S.S.'s house to show her the videos. However, D.S. was unable to show them because S.S. did not have an internet connection. D.S. then returned home with her laptop and called the police. While waiting for the officers to arrive, D.S. became concerned that Pharis `would become suspicious and delete the images from his Dropbox account.’  Consequently, she downloaded the seven videos from Pharis's Dropbox account to her laptop's hard drive.

When the officers arrived, they noticed D.S.'s laptop on the couch, displaying a paused video showing a man's torso. The officers asked D.S. to show them the videos, and D.S. resumed playing the video that was already open. Officers then obtained a search warrant for the residence and seized D.S.'s laptop. During a subsequent interview with officers, Pharis admitted to committing sexual acts with A.P., beginning in October 2012, and to recording those encounters.

State v. Pharis, supra. 

Before he went to trial, Pharis filed a motion to suppress, allegeing that

all evidence, including but not limited to videos and statements, collected as a result of the state's unauthorized intrusion into [his] Dropbox account, be suppressed.’ He maintained that D.S. had `acted as a state agent when she hacked into [his] account at the [officers'] request to view the evidence,’ thereby violating his constitutional right to privacy. After hearing argument, the court denied the motion, finding Pharis had failed to make a prima facie case for a constitutional violation because there had been no state action.

State v. Pharis, supra.  On appeal, Pharis argued, among other things, that the trial judge erred in denying his motion to suppress.  State v. Pharis, supra.  More precisely, he claimed

he `had an actual and reasonable expectation of privacy in his Dropbox account’ and D.S. had no authority to search his Dropbox files. He further maintains that his 4rth Amendment privacy rights were violated when D.S. showed the officers the videos downloaded from his Dropbox account because that constituted an unreasonable, warrantless search.

State v. Pharis, supra. 

The Court of Appeals began its analysis of Pharis’ argument by noting that the

4th Amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S. v. Jacobsen, 466 U.S. 109 (1984). . . . `Warrantless searches are “per se unreasonable under the 4th Amendment -- subject only to a few specifically established and well-delineated exceptions.”’  Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923 (Arizona Supreme Court 1997), quoting Katz v. U.S., 389 U.S. 347 (1967).

However, the 4th Amendment `is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.”’ U.S. v. Jacobsen, supra, quoting Walter v. U.S., 447 U.S. 649 (1980). And, under the private-search exception, `a police view subsequent to a search conducted by private citizens does not constitute a “search” within the meaning of the 4th Amendment so long as the view is confined to the scope and product of the initial search.’ U.S. v. Bomengo, 580 F.2d 173 (U.S. Court of Appeals for the 5th Circuit 1978); see also U.S. v. Jacobsen, supra.

For example, in Jacobsen, employees of a private freight carrier removed several layers of wrappings from a damaged package and observed a white powdery substance inside plastic bags. U.S. v. Jacobsen, supra.  After replacing the package as they had found it, the employees notified the Drug Enforcement Agency. U.S. v. Jacobsen, supra. The first agent to arrive similarly removed the wrappings and saw the white powder. U.S. v. Jacobsen, supra.  He then opened the plastic bags, removed a trace of the substance, and tested it. U.S. v. Jacobsen, supra.  The test confirmed the substance was cocaine. U.S. v. Jacobsen, supra.  Agents obtained a warrant to search the location where the package was addressed to be sent. U.S. v. Jacobsen, supra.  

Once there, they arrested the defendants, who were charged with possessing an illegal substance with intent to distribute. U.S. v. Jacobsen, supra.  The defendants filed a motion to suppress, arguing the warrant was the product of an illegal search and seizure, but the motion was denied. U.S. v. Jacobsen, supra.  

On appeal, the Supreme Court concluded the 4th Amendment did not require the first agent to obtain a warrant before opening the package and removing the substance for testing. U.S. v. Jacobsen, supra.  The Court pointed out that `[t]he initial invasions of [the defendants'] package were occasioned by private action.’ U.S. v. Jacobsen, supra.  And, it noted that `[t]he additional invasions of [the defendants'] privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.’ U.S. v. Jacobsen, supra.  

The Court observed that `[o]nce frustration of the original expectation of privacy occurs, the 4th Amendment does not prohibit governmental use of the now-nonprivate information.’  U.S. v. Jacobsen, supra.  Addressing each step of the agent's search, the Court found no 4th Amendment violation. U.S. v. Jacobsen, supra.  

State v. Pharis, supra. 

The Court of Appeals then noted that

[s]imilarly, here, the initial search of Pharis's Dropbox account was occasioned by private action. Acting of her own accord, D.S. obtained a temporary Dropbox account password, had it sent to Pharis's e-mail left open on her laptop, and accessed his Dropbox account, where she saw the videos. She then downloaded the videos to her laptop's hard drive. Because these invasions of Pharis's expectation of privacy were committed by a private party and not by state action, they did not violate the 4th Amendment. 

State v. Pharis, supra. 

The court went on to explain that assuming

the officers' request that D.S. show them the videos can be characterized as a search, that request did not exceed the scope of D.S.'s private search and therefore did not violate the 4th Amendment. See U.S. v. Jacobsen, supra.  D.S. had seen the videos on Pharis's Dropbox account and downloaded them to her laptop's hard drive. At that point, the videos were no longer private. See U.S. v. Jacobsen, supra. Although it is not clear whether the officers then viewed the videos from their location on Pharis's Dropbox account or on D.S.'s laptop, the videos nonetheless were the same ones D.S. had seen and downloaded.  See U.S. v. Jacobsen, supra.  (`The 4th Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’).

As the state points out, even if the officers watched the videos to a greater length or degree than D.S. previously had done, they did not exceed the scope of D.S.'s search because they were `already substantially certain of what [was depicted in the videos] based on the statements of [D.S.]’ U.S. v. Runyan, 275 F.3d 449 (U.S. Court of Appeals for the 5th Circuit 2001) (`[T]he police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties’). . . .

State v. Pharis, supra. 

Pharis, though, argued that

`[t]he private search exception does not apply to the warrantless search of [his] Dropbox files’ because D.S. acted as an agent of the state. Whether a private person acted as a state agent is “a fact-intensive inquiry that is guided by common law agency principles.”’ State v. Martinez, 221 Ariz. 383, ¶ 14, 212 P.3d 75, 79 (Arizona Court of Appeals 2009) quoting U.S. v. Jarrett, 338 F.3d 339 (U.S.Court of Appeals for the 4th Circuit 2003). The defendant bears the burden of proving a private party acted as a state agent. U.S. v. Ellyson, 326 F.3d 522 (U.S. Court of Appeals for the 4th Circuit 2003); U.S. v. Reed, 15 F.3d 928 (U.S. Court of Appeals for the 9th Circuit 1994).

`When determining whether a party acted as an agent of the state, this court looks to (1) whether the government had knowledge of and acquiesced to the party's actions and (2) the intent of the party.’ State v. Garcia–Navarro, 224 Ariz. 38, 226 P.3d 407 (Arizona Court of Appeals 2010) see also U.S. v. Walther, 652 F.2d 788 (U.S. Court of Appeals for the 9th Circuit 1981). `”If either element of this test is not met, then the private citizen was not acting as a state agent” and any fruit of the citizen's search or seizure may not be suppressed. State v. Garcia–Navarro supra quoting State v. Martinez, supra.

State v. Pharis, supra. 

The Court of Appeals then explained that in applying

the test here, we conclude D.S. was not acting as a state agent. Before the officers arrived, D.S. already had accessed Pharis's Dropbox account, viewed the videos, and downloaded them to her laptop's hard drive. She did so without any state knowledge or acquiescence. See U.S. v. Smythe, 84 F.3d 1240 (U.S. Court ofAppeals for the 10th Circuit 1996) (`[K]nowledge and acquiescence . . .  encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action’). It was only after the officers arrived to D.S.'s residence that they asked her to show them the videos; by that time, D.S.'s private search was already complete. . . .

Moreover, D.S.'s intent shows she was not acting as an agent of the state. D.S. opened Pharis's Dropbox account because she was suspicious of his relationship with S.S., not because she was trying to assist the police. Although her intent arguably changed when she downloaded the videos -- fearing Pharis would delete them from his account -- her initial motivation in the search was nonetheless personal. See U.S. v. Shahid, 117 F.3d 322 (U.S. Court of Appeals for the 7th Circuit 1997) (even though private party may intend to assist law enforcement, he does not become state agent if he has legitimate, independent motivation). . . .  Accordingly, the trial court did not err in concluding D.S. was not acting as a state agent. . . .

State v. Pharis, supra. 
For these and other reasons, the court affirmed Pharis’ convictions and sentence. State v. Pharis, supra. 

Facebook, the Secret Service and Threatening to Kill the President

After a jury convicted Christopher Castillo “of making a threat to injure or kill the President of the United States, in violation of 18 U.S. Code § 871(a)”, he appealed.  U.S. v. Castillo, 564 Fed. Appx. 500 (U.S. Court of Appeals for the 11^th Circuit 2014). More precisely, he appealed the U.S. District Court Judge’s “denial of his Federal Rule of Criminal Procedure Rule 29 motion for a judgment of acquittal”, an issue we will return to later.  U.S. v. Castillo, supra.  The trial was held in the U.S. District Courtfor the Middle District of Florida.  U.S. v. Castillo, supra.

In its opinion, the Court of Appeals does not explain in any detail how Castillo came to be charged with threatening to kill the President, but you can read more about that in the two news stories you can find here and here.

This, in fact, is all the court's opinion says about how the prosecution arose:

In response to a picture posted on Facebook, Castillo commented, `[T]hat's the last straw. If he gets re-elected, I'm going to hunt him down and kill him and watch the life disappear from his eyes.’ When another Facebook poster informed Castillo that threatening the President was a federal offense and that the Secret Service tracked down people who posted threats on social media, Castillo responded, `I wouldn't call it a threat but more of a promise. Let them come after me. Be more than happy to take a few of them with me.’

U.S. v. Castillo, supra.  

The Court of Appeals began its analysis of Castillo’s argument by noting that it reviews

de novo the district court's denial of a Rule 29 motion for a judgment of acquittal. U.S. v. Hunt, 526 F.3d 739 (U.S. Court of Appeals for the 11^th Circuit 2008). However, if the party did not raise the same argument before the district court, we review the issue for plain error -- which requires (1) error; (2) that was plain; and (3) affected substantial rights; and if those three prongs are met, we may exercise our discretion to correct the error if (4) it seriously affects the fairness, integrity or public reputation of judicial proceedings. U.S. v. Rodriguez, 398 F.3d 1291 (U.S. Court of Appeals for the 11th Circuit 2005). Generally, there can be no plain error if neither the Supreme Court nor we have addressed the issue, unless a statute expressly resolves the issue. U.S. v. Lejarde–Rada, 319 F.3d 1288 (U.S. Court of Appeals for the 11th Circuit 2003).

U.S. v. Castillo, supra. 

It also noted that in a criminal trial, the government has the burden to prove all of the

essential elements of a charged offense beyond a reasonable doubt. U.S. v. Medina, 485 F.3d 1291 (U.S. Court of Appeals for the 11th Circuit 2007). In reviewing the denial of a Rule 29 motion, we view the evidence in the light most favorable to the government and draw all reasonable inferences in favor of the jury's verdict. . . . 

The evidence is sufficient to sustain a conviction if `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ U.S. v. Hunt, 526 F.3d 739, 745 (U.S. Court of Appeals for the 11<sup>th</sup> Circuit 2008). This standard does not require the evidence to be `inconsistent with every reasonable hypothesis other than guilt.’ U.S. v. Hunt, supra. We permit the jury to choose from several reasonable conclusions that could be drawn from the evidence. U.S. v. Hunt, supra.

U.S. v. Castillo, supra.           

The Court of Appeals then addressed the crime at issue here, explaining that the

U.S. Code prohibits anyone from knowingly and willfully threatening to take the life of or to inflict bodily harm upon the President of the United States. 18 U.S. Code § 871(a). To sustain a conviction under § 871(a), the government must prove that (1) the defendant knowingly and willfully uttered the words alleged to constitute the threat, (2) the defendant understood the meaning of the words to be an apparent threat, and (3) the defendant said or wrote the words. See U.S. v. Callahan, 702 F.2d 964 (U.S. Court of Appeals for the 11th Cir.1983) (involving threats mailed to the President).

In Callahan, we expressly rejected the argument that the statute required the defendant to subjectively intend to injure the President or to incite others to injure the President. U.S. v. Callahan, supra. Instead, the government must only prove that the defendant made the statement under such circumstances that a reasonable person would construe the statement as a serious expression of an intention to kill the President. U.S. v. Callahan, supra. 

U.S. v. Castillo, supra. 

Since threat crimes can implicate the 1st Amendment protection of speech, the Court of Appeals also noted that the 1^st Amendment provides that

`Congress shall make no law . . . abridging the freedom of speech.’ U.S. Const. amend. I. Although the 1st Amendment generally prevents the government from regulating speech, the Supreme Court has confirmed that the government is permitted to regulate some types of speech, including true threats. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). A true threat is a statement in which `the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’ Virginia v. Black, 538 U.S. 343 (2003).

The speaker need not intend to carry out the threat, Virginia v. Black, supra, and a true threat does not require that the speaker intend to communicate a threat, U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) (conviction under 18 U.S. Code § 875(c)).

However, the Supreme Court has distinguished between true threats and political hyperbole, which the government cannot regulate. Watts v. U.S., 394 U.S. 705 (1969). In Watts, the defendant attended a public rally and joined a gathering of other young people to discuss police brutality. Watts v. U.S. supra. When another participant suggested that the young people should get more education before espousing their views, the defendant responded,

`They always holler at us to get an education. And now I have already received my draft classification as 1–A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.’

Watts v. U.S. supra. Emphasizing the context of the statement, the expressly conditional nature of the statement, and the reaction of the listeners, who had laughed in response, the Court concluded that the comment was `a kind of very crude offensive method of stating a political opposition to the President.' Watts v. U.S. supra. There, the Supreme Court emphasized that debate on public issues `may well include vehement, caustic, and sometimes unpleasantly sharp attacks’ on politicians. Watts v. U.S., supra. Therefore, the Court ordered that a judgment of acquittal be entered. Watts v. U.S. supra. 

U.S. v. Castillo, supra. 

Finally, court explained that in U.S. v. Alaboud, 347 F.3d 1293 (U.S. Court of Appeals for the 11th Circuit 2003), it found there was

sufficient evidence to sustain the defendant's conviction for violating § 875(c), and . . . expressly stated that it was required to look at the context in which the communication was made to determine if the communication would cause a reasonable person to construe it as a serious intention to inflict bodily harm. In looking at the relevant context, we specifically referred to, inter alia, the graphic promises of violence made in the phone calls at issue, the tone of the defendant's voice when he conveyed the threats, and the number of phone calls made to the victim. U.S. v. Alaboud, supra.

Moreover, in Callahan, we emphasized that reasonable persons could construe the threat in question as a serious expression of an intent to kill because (1) the letter in question was threatening on its face; (2) the letter included a date, time, and place on which the assassinations would occur, and the defendant had expressed his willingness to accept responsibility for them; (3) when he was arrested, the defendant emphasized that he meant everything that he had said; and (4) although the carrying out of the threat was conditional, the threat itself was not. U.S. v. Callahan, supra. 

U.S. v. Castillo, supra. 

The Court of Appeals then took up Castillo’s argument on appeal, noting that “for the first time in this court” he reviewed his “plain error” claim

that his second post could not be considered because it was not included in the indictment. As the record shows, the district court did not plainly err by admitting evidence related to Castillo's second post because that post was necessary to complete the story of the crime, given that (1) the post emphasized that what Castillo had said in the first post was true, (2) another Facebook poster, Vaughan Alexander, did not feel it necessary to contact the Secret Service about Castillo's post until seeing the second post, and (3) it was part of the same conversation that stemmed from the initial Facebook post. See U.S. v. Castillo, supra. 

The second post was inextricably intertwined with the first post for the same reasons. See U.S. v. Castillo, supra.  Castillo's claim of plain error also fails because he has not identified any caselaw forbidding a court from considering relevant and admissible evidence simply because it was not charged in the indictment.

U.S. v. Castillo, supra. 

The Court of Appeals also found that the District Court Judge did not err by denying

the Rule 29 motion because there was sufficient evidence that Castillo's Facebook threat constituted a true threat, not political hyperbole. Specifically, (1) Castillo's initial post had no indication that he did not intend the threat as he wrote it; (2) when confronted with the illegality of his actions, Castillo responded that his initial comment was not a threat, but a promise; and (3) he emphasized that he meant the threat when law enforcement officers questioned him about the comment. Unlike in Watts, there was no evidence that anyone had laughed in response to Castillo's post, and, instead, people interpreted it as a legitimate threat to the President, as evidenced by Alexander's decision to report the post to the Secret Service. . . .

Further, although § 871(a) carries an objective standard, . . . we still may use evidence of the defendant's subjective intent in order to meet the objective standard—and indeed, we considered evidence of the defendant's subjective intent in Callahan, including that the defendant later emphasized that he meant what he had said initially. See U.S. v. Callahan, supra. 

Although Castillo emphasizes the conditional nature of his threat, this argument fails because (1) even if the carrying out of the threat was conditional, the threat itself was not conditional . . . and (2) at the time Castillo told the Secret Service that he meant what he had said, the President had been re-elected, so that the condition in question had been fulfilled. Moreover, there is no requirement that Castillo actually intended to kill the President or even have intended to threaten him to sustain the conviction. See Virginia v. Black, supra; U.S. v. Martinez, supra.

U.S. v. Castillo, supra. 

Finally, the Court of Appeals held that the District Court Judge did not

plainly err by denying the claim -- raised for the first time on appeal -- that the government should have presented the entire Facebook conversation in question. To sustain a conviction, the government only had to establish that (1) Castillo knowingly and willfully wrote the Facebook post alleged to constitute the threat, (2) Castillo understood the meaning of the words to be an apparent threat, and (3) Castillo wrote the words. See U.S. v. Callahan, supra.  

As the record shows, the government met these elements. Although the context of the post was relevant to determine whether Castillo's Facebook post constituted a true treat, see U.S. v. Alaboud, supra,  there is no requirement that the government present the entire Facebook conversation to sustain Castillo's conviction. Thus, the district court did not plainly err by denying Castillo's Rule 29 motion based on the government's failure to admit the entire Facebook conversation.

U.S. v. Castillo, supra (emphasis in the original).