Professional Documents
Culture Documents
10-7187
_________________________________________________________________
_________________________________________________________________
v.
LANNY A. BREUER
Assistant Attorney General
ROBERT A. PARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
_________________________________________________________________
_________________________________________________________________
QUESTIONS PRESENTED
an animal enterprise.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
No. 10-7187
v.
OPINION BELOW
JURISDICTION
(Pet. App. B). On August 23, 2010, Justice Alito extended the time
1254(1).
STATEMENT
Pet. App. A 14. Each defendant was also deemed jointly and
3
severally liable for restitution totaling $1,000,001. Id. at 27.
Id. at 1-30.
“operate[d] within the boundaries of the law” and that any illegal
3-10.
these evil labs and taking their abused animals out.” C.A. App.
these actions were illegal, C.A. App. 835, and it therefore urged
780-782.
individuals “are not safe from us” and that “militancy” in support
‘EM” (id. at 1232), “Let ‘em have it!” (id. at 1706), and “make
receiving vulgar and abusive mail and telephone calls, and his home
of his windows with rocks and overturning his car. C.A. App. 2796-
2817.
8
SHAC similarly targeted Marsh, Inc., a company that provided
all Marsh employees, “we know where you work, we know where you
eat, we know where you sleep,” and “we will treat Marsh no
differently than we would treat Brian Cass” unless the company cut
the make, model, and license plate number of the family’s personal
asking her how she would feel if they cut open her youngest son and
8. Marion Harlos and Robert Harper (who worked for Marsh in Texas
acts. Pet. App. A at 10. Kjonaas was SHAC’s president and oversaw
that Stephens sever its ties with Huntingdon and controlled a SHAC
client and SHAC target, Kjonaas announced that the attack was part
telephone records showed that he called one of the men charged with
a court injunction could protect him or his family. Pet. App. 12;
of New York, which did business with Huntingdon. C.A. App. 1183.
and for assisting others in doing so. Ibid.; see also C.A. App.
the interior of the building with stickers and threw papers from a
Counts Two through Five charged Kjonaas, Gazzola, and Conroy with
in the record that illegal actions were “part and parcel” of SHAC’s
Id. at 18.
that was not only likely to occur, but provided the schedule by
burn down Robert Harper’s home and to harm him and his family. Id.
the other conspirators and his leadership role in SHAC. Pet. App.
20-21.
found “ample” evidence from which the jury could convict the
(and did) cause those individuals to fear for their safety and the
17
safety of their families. Ibid. Kjonaas used the Chiron bombings
Harper’s house and threatened to burn it down, and warned that the
was not itself proscribed by the 2002 version of the AEPA, id. at
24 n.15, but concluded that such crimes, committed with the express
1
Only Harper and SHAC (which is not a petitioner) challenged
the sufficiency of the evidence supporting the convictions on Count
Six. Pet. App. A at 26. The court of appeals held that SHAC’s
arguments were frivolous and that the same evidence supporting
Harper’s conviction on Count One supported his conviction for
conspiracy to use a telecommunications device to abuse, threaten,
and harass. Ibid.
18
Judge Fisher’s view, the evidence established that petitioners
ARGUMENT
that was not criminal under the 2002 version of the AEPA (Pet. 15-
(Pet. 25-28); and that the restitution order in this case was not
decision below does not conflict with any decision of this Court or
Co. v. Sullivan, 376 U.S. 254, 270 (1964). They did not, however,
if the speaker does not “actually intend to carry out the threat”);
R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) (true threat
the disruption that fear engenders, and from the possibility that
actions in concert. See id. at 18. The record is also rife with
20
instances in which petitioners directly threatened Huntingdon and
beating of Brian Cass, ibid.; C.A. App. 2485, 2728; publishing home
“make [their] lives a living hell!,” Pet. App. A 6-10, 19; C.A.
App. 1232, 1397; using the Chiron bombings to make Huntingdon “very
id. at 19-20.
886 (1982), does not hold (or even suggest) that petitioners’
which white merchants complained that the NAACP and its Mississippi
violated the boycott would “‘have their necks broken’ by their own
900 n.28. The principal means of disciplining those who did not
more importantly, there was no evidence that the NAACP or Evers had
see also id. at 924 (finding no evidence “that any illegal conduct
(Cal. Ct. App. 2005), and those using similar tactics. See, e.g.,
Cir. 2002) (en banc) (use of Internet and posters to publish names
913, 925-926 (8th Cir.) (same for speech suggesting that abortion
519 U.S. 1043 (1996); United States v. Malik, 16 F.3d 45, 48 (2d
2
Amici Center for Constitutional Rights, et al., contend
(Br. 6) that the decision below is in conflict with the Second
Circuit’s decision in New York v. Operation Rescue National, 273
F.3d 184 (2001). Operation Rescue, however, merely held that the
statement “killing babies is no different than killing doctors” was
an expression of political opinion that did not convey “a direct or
even veiled threat.” Id. at 196-197. The court of appeals noted
that the defendant had, on a different occasion, told a doctor,
“You’re next, I hope you’re next, you’re next,” but it did not
address whether that statement was a threat. Id. at 196 n.5.
23
this Court’s precedents concerning incitement and true threats
because those who speak over the Internet cannot know who they are
petitioners wanted.3
3
Amicus National Lawyers Guild asserts (Br. 5-13, 22) that
this case presents a “useful context” in which to address the First
Amendment protections applicable to Internet-based journalism.
This case would be a poor vehicle in which to address that issue.
Petitioners were not journalists. Rather, they were engaged in a
concerted campaign to incite, threaten, and commit crimes in order
to force individuals to accede to their demands.
4
The purpose of the strictissimi juris standard is to assure
“that one in sympathy with the legitimate aims of * * * an
organization, but not specifically intending to accomplish them by
resort to violence, [is not] punished for his adherence to lawful
and constitutionally protected purposes, because of other and
unprotected purposes which he does not necessarily share.”
Claiborne Hardware, 458 U.S. at 919 (quoting Noto v. United States,
367 U.S. 290, 299-300 (1961)).
24
evidence, and it concluded that, “[e]ven applying this strict
standard,” there was ample evidence on which the jury could convict
instruct (or did the court of appeals suggest) that the jury was
end animal testing at HLS.” Pet. 21. To the contrary, the court
attacks and threatening other people with serious bodily harm. See
5
Petitioners argue that Harper’s conviction is “particularly
troubling” because his actions in furtherance of the conspiracy
were not by themselves illegal. Pet. 23. This argument is
incorrect. The conspiracy statute proscribes criminal agreements,
not criminal acts, and an individual need not commit a separate
crime to be a member of a conspiracy. See Iannelli v. United
States, 420 U.S. 770, 777-778 (1975); Pet. App. A at 23. It is,
moreover, well established that legal acts “clearly undertaken for
the specific purpose of rendering effective the later illegal
activity which is advocated” may form the basis for a conspiracy
prosecution. Scales v. United States, 367 U.S. 203, 234 (1961);
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-498 (1949).
The court of appeals did not err in concluding that Harper’s
conduct -- including his role in SHAC’s leadership, advocacy of
violence in furtherance of SHAC’s aims, coordination of the
campaign against Stephens, Inc. (which included widespread denial-
of-service attacks), and efforts to instruct others on sending
black faxes -- established circumstantially that he was aware of,
and intentionally participated in, the conspiracy. Pet. App. A at
13, 20-21.
25
Johnston, 268 U.S. 220, 227 (1925) (“We do not grant * * *
from other circuits. See Pet. 24. In United States v. Spock, 416
F.2d 165 (1st Cir. 1969), the court held that the strictissimi
(quoting Scales v. United States, 367 U.S. 203, 234 (1961)). Each
In United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), the
6
Amici Center for Constitutional Rights, et al., contend
(Br. 12-20) that this Court should grant certiorari to clarify that
a “true threat” must be uttered with the subjective intent to
threaten and may not be the product of mere “objective negligence.”
Petitioners themselves do not make this contention, and the court
of appeals did not address it. Cf. Pet. App. 18-19 (holding that
some of petitioners’ “conduct constituted ‘true threats’” without
articulating the legal standard). That alone is sufficient reason
for this Court to decline review of the issue. See United States
v. Williams, 504 U.S. 36, 41 (1992). In any event, the issue is
not cleanly presented here. The district court instructed the jury
26
3. Petitioners further contend (Pet. 15-20) that the court
7
The AEPA in its current form prohibits traveling in or
using a facility in interstate commerce “for the purpose of
damaging or interfering with the operations of an animal
enterprise,” and committing (or conspiring to commit) one of three
substantive offenses in connection with that purpose:
(1) intentionally damaging or causing the loss of property of the
animal enterprise; (2) intentionally damaging or causing the loss
of property of persons or entities “having a connection to,
relationship with, or transactions with” the animal enterprise; or
(3) intentionally placing a person in reasonable fear of death or
serious bodily injury “by a course of conduct involving threats,
acts of vandalism, property damage, criminal trespass, harassment,
or intimidation.” 18 U.S.C. 43(a). Thus, under current law,
petitioners could have been charged with numerous substantive AEPA
offenses, each carrying their own punishment, for each of the
businesses and individuals SHAC targeted.
28
property, including animal records used by the animal enterprise,
“attempted to turn the 2002 version” of the AEPA “into the exact
Huntingdon. This, too, did not require the jury to find any
a third party.8
8
The AEPA did not define “physical disruption,” except to
state that it did not include “any lawful disruption that results
from lawful public, governmental, or animal enterprise employee
reaction to the disclosure of information about an animal
enterprise.” 18 U.S.C. 43(d)(2) (2000 & Supp. II 2002).
30
petitioners did not object to the instructions on this ground in
the district court, nor did they raise this claim in their briefs
U.S. 36, 41 (1992); Cutter v. Wilkinson, 544 U.S. 709, 718 n.7
here.
would be for plain error. See United States v. Marcus, 130 S. Ct.
2159, 2166 (2010); Jones v. United States, 527 U.S. 373, 388
(1999). There was no error, much less a plain error that affected
lawless action, and thus were not protected. Pet. App. A at 18.
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 497-498 (1949)
protected speech.
(Pet. 28-31) that the restitution order in this case was not
district court must order restitution for specified crimes “in the
security for its physical plant and its employees, as well as legal
hearing, id. at 60, 62, 66, and the district court thereafter
and replace equipment, lost revenue, and other expenses that were
Hughey v. United States, 495 U.S. 411, 413 (1990) (restitution may
presented here.
35
CONCLUSION
Respectfully submitted.
LANNY A. BREUER
Assistant Attorney General
ROBERT A. PARKER
Attorney
FEBRUARY 2011