tag:blogger.com,1999:blog-21633793.post5488824837976755122..comments2023-12-12T03:19:42.467-05:00Comments on CYB3RCRIM3: "True Threats," Facebook and "Blowing Off Steam"Susan Brennerhttp://www.blogger.com/profile/17575138839291052258noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-21633793.post-739356237897653602016-01-02T21:02:16.334-05:002016-01-02T21:02:16.334-05:00malicious to be harmless. See, e.g., Griffin v. Un...malicious to be harmless. See, e.g., Griffin v. United States, 502 U.S. 46, 48 (1991) (allowing conviction to stand where there was insufficient evidence of one theory of liability because jury could have convicted defendant under a separate theory). Here, the jury rejected the only alternative available for conviction, leaving no room for doubt that the jury convicted based on the improperly-instructed malicious conveyance theory.<br />“[W]hen the instructions allow a jury to convict on two theories, one of which is legally insufficient, then the court must remand for a new trial, because a jury that followed its instructions might have convicted on the invalid ground while disdaining the proper one.” United States v. Borrero, 771 F.3d 973, 976-77 (7th Cir. 2014); see also United States v. Robinson, 96 F.3d 246, 250 (7th Cir. 1996) (reversing conviction and remanding for new trial in light of faulty jury instruction because “we cannot be sure whether the jury convicted on the proper basis or the improper basis.”); United States v. Thomas, 86 F.3d 647, 650-51 (7th Cir. 1996). Because the jury could have convicted Mr. Bradbury based on its finding that he “intentionally” made a false statement, this Court should grant Mr. Bradbury’s motion for a new trial.<br />USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 7 of 8<br />8<br />WHEREFORE, for the reasons stated herein and any other that become apparent to the Court, counsel for defendant requests this Court to grant his motion and grant Mr. Bradbury a new trial.<br />Dated: November 16, 2015<br />Respectfully submitted,<br />Northern District of Indiana<br />Federal Community Defenders, Inc.<br />By: s/Roxanne Mendez Johnson<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-85103294881632330172016-01-02T21:00:08.828-05:002016-01-02T21:00:08.828-05:00I also believe there's sufficient evidence to ...I also believe there's sufficient evidence to show that he maliciously conveyed false information knowing it to be false with an intent -- that concerned activities of doing damage to buildings or harm to people, and I do believe that the concept of doing something maliciously means that you do it intentionally or with a deliberate disregard of the likelihood that injury might result. The injury here is the fallout from saying highly provocative and threatening things online and the very real possibility that those types of communications are going to be transmitted to law enforcement, and law enforcement is going to have, understandably, a serious response to it; and I believe that that is what is meant by doing something – conveying false information with a sort of utter disregard for what the fallout is of making those false statements.<br />[DE 159, p. 42, line 21 – p. 43, line 10.] (Emphasis added.) The Court clearly connected the “likelihood that damage or injury will result” prong to the “intentionally” prong.<br />Nonetheless, despite the Court’s intention, the jury instructions as delivered did not make it clear to the jury that intentional meant “intending to do damage.” In fact, as written, the damage requirement appears to modify only deliberate disregard. See Jury Instruction 22 (“to act ‘maliciously’ means to act intentionally or with deliberate disregard of the likelihood that damage or injury will result” (emphasis added)). Thus, the jury could have easily believed that it was to convict Mr. Bradbury if it believed his conduct was merely purposeful. Because the instruction presented to the jury did not contain additional explanatory language to make clear that the “likelihood that damage or injury will result” prong was to be modified by either a) intentionally or b) with deliberate disregard, the factual question of whether Mr. Bradbury conveyed false information, intentionally, without regard for the likelihood that damage or injury would result, was impermissibly stolen from the purview of the jury.<br />2. Mr. Bradbury is Entitled to a New Trial.<br />Significantly, Mr. Bradbury was acquitted under the alternative “threats” theory, thus there is no basis upon which this Court can find the flaw in the definition of USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 6 of 8Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-12462131791609873022016-01-02T20:58:53.819-05:002016-01-02T20:58:53.819-05:00addressed here. USDC IN/ND case 2:14-cr-00071-PPS-...addressed here. USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 4 of 8<br />5<br />damage, the destruction, intentionally. But you are not acting “maliciously.” For the federal arson statute to make sense, “maliciously” has to mean deliberately (or in willful disregard of known or suspected consequences) using fire to do a harmful act. Burning your wood in your fireplace is not a harmful act; it's an innocent act.<br />U.S. v. McBride, 724 F.3d 754, 759 (2013) (citations omitted). Without harm, arson becomes merely a campfire.<br />So too does malicious conveyance depend on harm. Without harm, any act of speech that involved a pretend or imagined series of events involving harm to a public person or property would be a criminal offense. Satirical news stories, video games, rap lyrics and sketch comedy shows would be the subject of criminal prosecutions. All of those forms of media can and occasionally do involve (1) false information the speaker knows is false; (2) The false information concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy public property by use of fire or explosives; (3) that was conveyed via an instrument of interstate commerce. Moreover, those forms of media convey that information intentionally; i.e. when a purported false statement is included for entertainment or rhetorical effect, it is made purposefully.<br />These forms of media are not the subject of criminal prosecutions, however, because those statements are not made maliciously; specifically, they are not made intending to do damage, or with a deliberate disregard that the likelihood of damage would result. The prospect of harm is crucial in the distinction between a campfire and an arson, was crucial in McBride’s holding, and is crucial here.<br />Moreover, it is clear that this Court understood “intentionally” as “intending to do damage.” In discussing Mr. Bradbury’s Rule 29 motion for judgment of acquittal, this Court emphasized the requirement that Mr. Bradbury had acted despite a risk of harm: USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 5 of 8<br />6<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-80424213136812323382016-01-02T20:55:14.667-05:002016-01-02T20:55:14.667-05:00a threat, it must prove the following two things: ...a threat, it must prove the following two things: First, that the statement, when viewed in the context and under the circumstances in which it was made, would cause apprehension in a reasonable person, as distinguished from idle or careless talk, exaggeration, or something said in a careless manner; and Second, that the defendant made the statement ‘willfully.’ That is, he intended that the statement be understood as a serious expression of his intention to do the acts described.<br />See Jury Instruction 20. Mr. Bradbury was acquitted under that theory.<br />The jury was then instructed that the government could convict Mr. Bradbury under a second theory of liability. Specifically, they were instructed that they must convict him if they found, beyond a reasonable doubt that: “(1) the defendant conveyed false information knowing the information to be false; (2) The false information concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property by use of fire or explosives; (3) The false information was conveyed via an instrument of interstate commerce; and (4) The false information was conveyed maliciously.” See Jury Instruction 21. As to the definition of “maliciously,” the jury was instructed that “to act ‘maliciously’ means to act intentionally or with deliberate disregard of the likelihood that damage or injury will result.” See Jury Instruction 22. Defense counsel objected to this instruction. [DE 141, page 205, line 16 – page 206, line 11.] The jury convicted Mr. Bradbury of Count 1 based on this instruction.<br />The jury instruction for malicious conveyance was fatally flawed, in such a way as to compel the jury to find Mr. Bradbury guilty under that theory of liability. Under the jury instruction as delivered, the jury was required to convict Mr. Bradbury if they determined that he purposefully made the statements at issue, as long as those statements were false, concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 3 of 8<br />4<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-40587813128932663422016-01-02T20:52:41.197-05:002016-01-02T20:52:41.197-05:00UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ...UNITED STATES DISTRICT COURT<br />NORTHERN DISTRICT OF INDIANA<br />HAMMOND DIVISION<br />UNITED STATES OF AMERICA<br />Plaintiff,<br />v. CASE NUMBER: 2:14-CR-71<br />SAMUEL L. BRADBURY<br />Defendant.<br />MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION<br />FOR LEAVE TO FILE A MOTION FOR JUDGMENT OF ACQUITTAL, TO DISMISS OR FOR A NEW TRIAL<br />Count 1 of the Indictment charged that “through use of the Internet, an instrument of interstate commerce, Samuel Bradbury willfully made a threat to, and maliciously conveyed false information knowing the same to be false concerning an alleged attempt being made to, kill and injure law enforcement officers, including two law enforcement officers listed by name and two judges listed by name, and to unlawfully damage and destroy the Tippecanoe County courthouse and other county offices and equipment, including police vehicles, by means of explosives and fire. All in violation of Title 18, United States Code, Section 844(e).”<br />On July 2, 2015, after a jury trial, the jury returned a verdict of guilty of maliciously conveying false information, knowing the same to be false, concerning an alleged attempt being made to kill or injure any individual or to unlawfully damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive, as charged in the indictment. The defendant has a sentencing date of January 7, 2016. USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 1 of 8<br />2<br />Counsel for the defendant requests the Court to allow the belated filing of a motion for judgment of acquittal, to dismiss, or for a new trial on Count 1 due to the exception of excusable neglect. Mr. Bradbury’s trial attorneys are no longer employed by the Federal Community Defender’s Office, and undersigned counsel was assigned to this case on September 1, 2015.<br />An untimely motion for judgment of acquittal or for new trial does not deprive the Court of jurisdiction to entertain it. United States v. White, 597 F.Supp.2d 1269 (M.D. Alabama 2009). The standard to allow a late motion for judgment of acquittal is “excusable neglect” under Federal Rule of Criminal Procedure 45(b)(1). Id. at 1278. The same goes for late motions for new trial. The standard is flexible, and it may extend to omissions, or the result of “inadvertence, mistake, or carelessness.” Id. Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).<br />1. Jury Instruction 22 Defining “Maliciously” Is Incomplete.<br />At trial, the Court gave the jury two separate instructions for the two theories of liability by which it could have found Mr. Bradbury guilty of Count 1. As to the first theory of liability, the jury was instructed that they must convict Mr. Bradbury if they found beyond a reasonable doubt that “(1) the defendant made a threat to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property; (2) By use of fire or explosives; (3) The threat was communicated via an instrument of interstate commerce; and (4) The threat was made willfully.” See Jury Instruction 19. Importantly, the jury was instructed that:<br />...the term ‘threat’ as used in these instructions means a serious expression of an apparent intention to carry out the activity described in the communication. In order for the government to prove that the statement is<br />USDC IN/ND case 2:14-cr-00071-PPS-APR document 172 filed 11/16/15 page 2 of 8Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-30900230323894753432015-10-28T21:04:22.080-04:002015-10-28T21:04:22.080-04:00This comment has been removed by the author.Unknownhttps://www.blogger.com/profile/08271249077880763323noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-67410482335015636202015-09-28T19:03:53.053-04:002015-09-28T19:03:53.053-04:00This comment has been removed by the author.Unknownhttps://www.blogger.com/profile/08271249077880763323noreply@blogger.com