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UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT
NO. 15-50138 & 15-50193
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARREN DAVID CHAKER,
Defendant-Appellant.
Appeal from the U.S. District Court
For the Southern District of California
Honorable Larry A. Burns, Presiding
Appellants Reply Brief

Sarah R. Weinman
Federal Defenders of San Diego, Inc.
225 Broadway Street, #900
San Diego, California 92101
619.234.8467
Sarah_Weinman@fd.org
Attorneys for Defendant-Appellant

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TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................................................................ iii
INTRODUCTION........................................................................................................ 1
ARGUMENT................................................................................................................. 5
I.

II.

Revocation Was Erroneous Because the Condition Exludes Core


Protected Speech Like the Forced Out Statement .................................... 5
A.

The sentencing court made clear the condition was intended to


guard against threats, incitement, and other unprotected speech and
that it did not infringe on core protected speech .............................. 6

B.

The written judgment is consistent with and shaped by the


sentencing courts oral pronouncement of the condition ............... 11

C.

Although a sentencing court may restrict more of a defendants First


Amendment interests, the sentencing court here did not do so ..... 12

D.

Conclusion ........................................................................................ 12

Revocation Was Erroneous Because the Condition as Interpreted by the


Revocation Court is Unconstitutionally Vague and Overbroad................ 13
A.

The condition violates due process because it is impermissibly


vague .................................................................................................. 13
1.

The condition is vague because the sentencing courts


explanation gave Chaker the reasonable expectation that the
forced out statement would not violate the condition ......... 14

2.

The condition is vague because it mixed separate torts ........... 14

3.

The condition is vague because it requires vindictive motive


but not actual malice or intent to harass.................................. 15
i

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B.
III.

IV.

The condition violates the First Amendment because it is


substantially overbroad ..................................................................... 18

Revocation Was Erroneous Because the Evidence Was Insufficient to


Prove a Violation of the Condition ............................................................ 21
A.

The evidence did not prove the harassment-defamation standard


applied by the revocation court ........................................................ 21

B.

The evidence did not prove even straightforward harassment ........ 24

The New Special Conditions Imposed are Impermissibly Vague,


Overbroad, and Substantively Unreasonable ............................................. 29

CONCLUSION........................................................................................................... 31
CERTIFICATE OF COMPLIANCE ......................................................................... 33
CERTIFICATE OF SERVICE ................................................................................... 34

ii

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TABLE OF AUTHORITIES
Federal Cases
Brandenburg v. Ohio,
395 U.S. 444 (1969) ................................................................................................. 6
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ................................................................................................. 6
Elonis v. United States,
135 S. Ct. 2001 ....................................................................................................... 19
FEC v. Wis. Right to Life, Inc.,
551 U.S. 449 (2007) ............................................................................................... 17
Hustler Mag., Inc. v. Falwell,
485 U.S. 46 (1988) ................................................................................................. 17
Johnson v. United States,
135 S. Ct. 2551 (2015) .............................................................................. 13, 15, 18
New York Times v. Sullivan,
376 U.S. 254 (1964) ........................................................................................... 6, 16
R.A.V. v. St. Paul,
505 U.S. 377 (1992) ............................................................................................... 30
Rosenblatt v. Baer,
383 U.S. 75 (1966) ................................................................................................. 18
United States v. Adkins,
743 F.3d 176 (7th Cir. 2014) ................................................................................. 20
United States v. Bagdasariyan,
652 F.3d 1113 (9th Cir. 2011) ............................................................................... 26
United States v. Gnirke,
775 F.3d 1155 (9th Cir. 2015) ............................................................................... 19
United States v. Hanna,
49 F.3d 572 (9th Cir. 1995) ................................................................................... 23
United States v. Hayes,
283 F. Appx 589 (9th Cir. 2008) ........................................................................... 31
United States v. Jones,
696 F.3d 932 (9th Cir. 2012) ................................................................................. 11
iii

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United States v. Kilbride,


584 F.3d 1230 (9th Cir. 2009) ................................................................................ 13
United States v. Montaque,
584 F. Appx 765 (9th Cir. 2014) .......................................................................... 10
United States v. Osinger,
753 F.3d 939 (9th Cir. 2014) .................................................................... 17, 25, 26
United States v. Petrovic,
701 F.3d 849 (8th Cir. 2012) ................................................................................. 26
United States v. Safirstein,
827 F.2d 1380 (9th Cir. 1987) ............................................................................... 23
United States v. Soltero,
510 F.3d 858 (9th Cir. 2007) ................................................................................. 19
United States v. Swisher,
--- F.3d ----, 2016 WL 142591 (9th Cir. Jan. 11, 2016) (en banc) ..................... 20, 30
United States v. X-Citement Video, Inc.,
513 U.S. 64 (1994) ................................................................................................. 19
Virginia v. Black,
538 U.S. 343 (2003) ................................................................................................. 5
Virginia v. Hicks,
539 U.S. 113 (2003) ............................................................................................... 18
Federal Statutes
18 U.S.C. 3553(a) ..................................................................................................... 20
18 U.S.C. 3583(d)..................................................................................................... 20
Federal Rules
FED. R. APP. P. 28(c) ....................................................................................................... 1
FED. R. APP. P. 32(a)(7)(c) ............................................................................................ 33
Miscellaneous
Black's Law Dictionary 733 (8th ed. 2004) ................................................................. 16

iv

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RODNEY A. SMOLLA AND MELVILLE B. NIMMER,


SMOLLA AND NIMMER ON FREEDOM OF SPEECH, 3:10 (updated 2015) ............ 30
United States v. Chaker, No. 14-20026 (5th Cir.) ........................................................... 7

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UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

)
)
Plaintiff-Appellee,
)
)
v.
)
)
DARREN DAVID CHAKER,
)
)
Defendant-Appellant.
)
______________________________ )

U.S.C.A. NO. 15-50138, 15-50193


U.S.D.C. NO. 15-CR-7012-LAB

APPELLANTS REPLY BRIEF

INTRODUCTION 1
When Darren Chaker was sentenced for bankruptcy fraud in the Southern
District of Texas, the sentencing court imposed the supervised-release condition that
he may not stalk and/or harass other individuals, to include, but not limited to,
posting personal information of others or defaming a persons character on the
internet. ER268. The sentencing court considered evidence that Chaker allegedly
had engaged in speech that threatened and incited others in the past, SER286, and
designed the condition to prevent Chaker from engaging such speech in the future,

This reply brief addresses arguments raised in the governments answering


brief, FED. R. APP. P. 28(c), and failure to reiterate any arguments raised in the opening
brief should not be deemed a concession on those matters.
1

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ER211. The court explained in pronouncing the condition that it did not step[] on
Chakers First Amendment rights. ER212-13.
Jurisdiction over Chakers supervised release was transferred to the Southern
District of California. While on supervised release, Chaker wrote several blogposts
about Leesa Fazal, a Nevada state investigator, including one addressed to criminal
defense or civil rights attorneys claiming to have information about why Faz[a]l was
forced out of the Las Vegas Metro Police Department and other credible material
for impeachment. ER162. Fazal excerpted the posts in an email to Chakers
probation officer. Fazal did not allege that any of the statements in the posts were
untrue.

But she suggested that they violated the stalking/harassing/defaming

condition. The probation officer then filed a revocation petition alleging that the
posts violated the condition.
The sole piece of evidence offered by the government at the revocation hearing
was Fazals email. On the basis of this evidence as well as the presentence report
(PSR) filed in the Texas sentencing, the court determined that the forced out
statement violated the condition. The court revoked supervised release and sentenced
Chaker

to

new

supervised-release

term

subject

to

the

same

stalking/harassing/defaming condition; a condition that he may not reveal private


information of others or threaten others by posting false information, disparage or
2

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defame others on the internet; and a condition that he shall not send anonymous
emails. ER8, 277.
On appeal, Chaker argues that the district courts decision to revoke supervised
release as well as the sentence imposed upon revocation are fundamentally flawed and
require reversal. As set out in his opening brief (AOB), the condition imposed
restricts only stalking and harassing conduct while preserving core First Amendment
rights. The statement that Fazal was forced out of the police department is a
statement about a public official concerning her official dutiesthe weightiest type of
protected speech. Yet the revocation court found that the statement violated the
condition. It did so by misinterpreting the condition to restrict all protected speech
when the sentencing court explicitly excluded at least some such speech, and by mixing
defamation and harassment in applying the condition. Alternatively, the courts
interpretation, if correct, highlighted the conditions unconstitutional vagueness and
overbreadth. Even if the condition withstands scrutiny, the revocation was improper
because the evidence did not establish harassment, let alone the courts harassmentdefamation amalgam. Under each of these alternative theories, Chaker argued that
the courts revocation order should be vacated.
In its answering brief (GAB), the government implicitly concedes that the
forced out statement is protected speech. But from that premise, the government
3

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scrambles to make sense of what the revocation court did. First, the government
echoes the revocation courts misinterpretation that the condition does infringe on
core speech rights, even though the sentencing court said the opposite. Second, the
government argues that the condition as interpreted by the revocation court is not
vague because Chaker should have anticipated that these core rights would be stepped
on despite the sentencing courts pronouncement; that ad hoc mixing of separate torts
was not unforeseeable or arbitrary; and that omission of the essential elements of these
torts was not unforeseeable or arbitrary. The government also argues that the
condition is not overbroad, although it acknowledges that the condition restrains even
unknowingly false criticism of government officials. Third, the government argues
that the forced out statement likely violated the condition, but ignores that Fazals
email failed to prove the essential elements of the condition. Because none of the
governments arguments justify the improper order to revoke supervised release, the
judgment should be reversed.
Chaker also contends that the sentence imposed upon revocation was
unconstitutional and unreasonable. Specifically, the opening brief argued that the
new no stalking/harassing/defaming condition, the no disparaging condition, and
the no anonymous emails condition are impermissibly vague, overbroad, and
substantively unreasonable.
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The government concedes that if these three conditions prohibit more than
harassment, they are unconstitutional, but contends that they should be upheld
because the revocation court intended them to restrict only harassment.

This

contention belies the revocation courts pronouncement of the conditions as well as


the structure of the written conditions, which show that the court intended all three
conditions to restrict far more than harassment.

Accordingly, the sentence is

unconstitutional and should be vacated. Alternatively, to the extent that this Court
agrees that the conditions can be read to restrict only harassment, it should impose a
limiting construction collapsing all three conditions into a single, straightforward
condition that captures the courts intent: Chaker may not stalk and/or harass.
ARGUMENT
I.

Revocation Was Erroneous Because the Condition Excludes Core


Protected Speech Like the Forced Out Statement
It is undisputed that the blog statement in question herethat Fazal was forced

out of the police departmentis government criticism protected by the First


Amendment. The government does not attempt to show (nor could it show) that the
statement is excepted from constitutional protection because it is a true threat, see
Virginia v. Black, 538 U.S. 343, 359-60 (2003) (defining true threat as a serious
expression of an intent to commit an act of unlawful violence to a particular
individual); advocates violence in a manner directed to inciting imminent lawless
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action, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam), or constitutes
fighting words that plainly tend[] to excite [Fazal] to a breach of peace, Chaplinsky
v. New Hampshire, 315 U.S. 568, 573 (1942). And given that the statement concerns
a public official and there is no proof of falsity or actual malice, see infra, Sections II
& III, the statement also does not qualify for the defamation exception to the First
Amendment. See New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).
The question is, does the condition imposed by the sentencing court restrict
core First Amendment rights? The sentencing courts imposition of the condition
makes clear that it does not. AOB21-29. But the government argues that the
condition infringes on the full extent of First Amendment-protected speech. In so
arguing, the government (A) distorts the record of what the sentencing court actually
said, (B) claims that the written judgment and the oral pronouncement conflict and
that the latter should control, and (C) suggests that because the sentencing court could
have infringed on core speech rights, it did so here. None of these arguments is sound.
A. The sentencing court made clear that the condition was intended to guard
against threats, incitement, and other unprotected speech and that it did
not infringe on core protected speech
As explained in the opening brief, the sentencing court imposed the no
stalking/harassing/defaming condition to deter and rehabilitate Chaker from
engaging in threatening and inciting online communications. AOB21. The court
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explained that restricting such speech did not step[] on Chakers First Amendment
rights. ER213. In claiming that the condition restricts all protected speech, the
government distorts the sentencing courts clear explanation of the First Amendmentdrawn boundaries of the condition and ignores the context in which they were made.
During the bankruptcy fraud case, 2 the sentencing judge heard unadjudicated
allegations that Chaker had engaged in threatening and inciting speech in the past.
The governments brief reviews these allegations at length, GAB3-22, arguing that
Chaker made overt threats and veiled threats against others. GAB3. For example,
he allegedly threatened to post peoples home addresses and said that he would not
be held responsible for any harm that might occur to the employees as a result of these
postings. PSR13. He also allegedly threatened to post inappropriate videos of an
ex-girlfriend, sent voluminous harassing emails to her, and distributed
pornographic photographs of her to her co-workers. PSR11-12.
In view of this evidence, the sentencing court expressed concern that Chaker
pos[ed] a threat, a serious threat to people by repeatedly posting their [personal information]
with statements that raise the hint of danger or suggestions that things could happen. SER286
(emphasis added). The court noted that such speech can incite others. SER286.

An appeal of the case is pending in the Fifth Circuit. See United States v.
Chaker, No. 14-20026 (5th Cir.).
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And the court sought to prevent Chaker from taking such extraordinary measures
intended to harm others. SER287. In furtherance of this objective, the court
imposed the no stalking/harassing/defaming condition. The sentencing court made
clear that the condition was designed to prevent Chaker from engaging in speech that
was harassing because it threatened or incited others. For example, the court said:
If [] and when you are upset with someone who you think has been unfair
or mistreated you, you need to deal with it through the counselor and
make considered and careful judgments. You have the right of first
amendment right and a right of free speech. But when you start
threatening to indirectly invade peoples privacy or harm them by putting
things upon the internet such as home addresses with comments that
you are going toyou wont harm them but you know others who may,
thats not your problem.
ER211. The court explained that Im not telling you youre not allowed to have your
free speech rights or go on the computer. Im not saying that. And I will craft this
requirement very carefully so that Im not stepping on your toes.

ER213.

Prophylactically, the sentencing urged Chaker to focus less on the First Amendment
and more on the Golden Rule:
Part of your teaching for your community service that youve been
undertaking is to teach people what it feels like to help them, lead them
to a straighter or better path. You also have to follow that straighter or
better path. Take the high road. Were not talking about legal. Were
not talking about first amendment. Were talking about give people the
benefit of the doubt.

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ER212. The court counseled Chaker to just be sensitive. You dont need to be
publicizing peoples personal information whether its legal or notbecause I dont
want you to even be that close to it. ER213-14.
In its response brief, the government quotes at length from the sentencing
courts expressions of concern about Chakers history of speech involving threats
and incite[ment] to harm people. GAB8-10, 21-22. And the government correctly
explains that the sentencing court couched its justification for restricting harassment
in these concerns. GAB21.
But the government nonetheless argues that the court restricted all free speech
under the condition. In other words, the government contends that when the
sentencing court said, you have the right of first amendment rights, ER211, what it
meant was, you dont have those rights. And the government contends that when
the sentencing court said, Im not telling you youre not allowed to have your free
speech rights, ER213, what it meant was, Im telling you youre not allowed to have
your free speech rights.
The government is able to pull these semantic gymnastics by taking the
sentencing courts pronouncement of the condition out of context. The government
ignores the import of the very passages that it quotespassages explaining that what
the sentencing court was really concerned about was preventing conduct that was
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harassing in that it threat[ened] to indirectly invade peoples privacy or harm them


by putting things up on the internet such as home addresses with comments that you
are going toyou wont harm someone but you know others who may. ER211
(quoted at GAB36). The sentencing court believed that Chaker had engaged in such
harassing conduct in the past. And the sentencing court, in an effort to deter and
rehabilitate him, imposed the condition to prevent him from engaging in such
conduct in the future. Thus, contrary to the governments claim, the condition
limited harassment that involved unprotected speech or, at the most, the margins of
protected speech.
The government further claims that when the sentencing court explained, you
dont need to be publicizing peoples personal information whether its legal or not,
ER213, it meant that the First-Amendment status of the speech was irrelevant under
the condition. GAB35. Read in context, however, the sentencing court was saying
that protected speech was legal under the condition, but that, prudentially, Chaker
should avoid getting even that close the First-Amendment-drawn line of the
condition. ER213-14. See United States v. Montaque, 584 F. Appx 765, 766 (9th Cir.
2014) (In context, it is clear that this was just a warning by the district judge that the
defendants offensive and scurrilous [speech would be] entirely inappropriate).

10

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In sum, the supervised-release condition was not designed to step on core


protected speech, and the sentencing court explained as much in imposing it. The
governments decontextualized distortions cannot overcome the plain import of the
pronouncement.
B. The written judgment is consistent with and shaped by the sentencing
courts oral pronouncement of the condition
The government next argues that even if the sentencing court did say that free
speech was protected under the condition, the condition as written does not express
that caveat, and the written condition should control. There are at least two flaws
with this argument.
First, it is well-established that if a direct conflict exists between a sentencing
courts unambiguous oral pronouncement and the written judgment, the oral
pronouncement, not the written judgment, controls. United States v. Jones, 696 F.3d
932, 938 (9th Cir. 2012). Here, in imposing the condition at sentencing, the court
plainly said that it was safeguarding First Amendment-protected speech.

This

pronouncement thus controls over any inconsistency in the written judgment. See id.
But in any event, no conflict exists here. Because harassment can include true
threats and incitement, the plain language of the written judgment, may not stalk
and/or harass, is consistent with and limited by the sentencing judges oral caveat
that the condition restricted unprotected speech but did not restrict protected speech.
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At a minimum, the courts oral pronouncement was clear that the full extent of
protected speech was not restricted by the condition, and the written judgment is not
inconsistent.
C. Although a sentencing court may restrict more of a defendants First
Amendment interests, the sentencing court here did not do so
Finally, the government spends several pages explaining that a sentencing court
may infringe on First Amendment rights as a general matter. GAB37-41. But in this
case, the sentencing court made clear that the condition restricted unprotected speech
and did not infringe on core First Amendment rights. That the court had legal
authority to restrict more is irrelevant.
D. Conclusion
By defining the condition as restricting all protected speech in contravention
of the sentencing courts pronouncement, the revocation court impermissibly
misinterpreted the condition. And, since the statement criticizing a law enforcement
officer is the most protected type of speech, the revocation courts determination that
it violated the condition is reversible error. The judgment therefore should be
vacated.

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II.

Revocation Was Erroneous Because the Condition as Interpreted by the


Revocation Court Is Unconstitutionally Vague and Overbroad
A. The condition violates due process because it is impermissibly vague
A criminal statute that flouts the prohibition of vagueness violates the first

essential of due process. Johnson v. United States, 135 S. Ct. 2551, 2556-67 (2015)
(quotes and citation omitted). This is because a vague criminal statute punishes
behavior that a defendant could not have known was illegal, is capable of arbitrary or
discriminatory enforcement, and impermissibly chills free speech. See United States v.
Kilbride, 584 F.3d 1230, 1256 (9th Cir. 2009).
As argued in the opening brief, the condition that Chaker was deemed to have
violatedi.e., the condition as interpreted by the revocation courtrestricted all First
Amendment-protected speech and was defined by a scattershot application of
harassment and defamation law. AOB29-43. If the revocation courts interpretation
was correct, then the condition is impermissibly vague.
The government attempts to sidestep this argument by claiming that the
revocation courts interpretation is irrelevant to this Courts due process
analysisbecause the condition is interpreted by this Court de novo. GAB48. But
this claim misses the point. The revocation courts interpretation is proof in the
pudding that the condition provided inadequate notice and was applied arbitrarily
the very hallmarks of the vagueness doctrine.
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1. The condition is vague because the sentencing courts explanation gave


Chaker the reasonable expectation that the forced out statement would not
violate the condition
Because the sentencing court told Chaker that he was allowed to have [his]
free speech rights, ER213, and that the condition was not talking about first
amendment, ER212, Chaker could not have known that government criticism was
restricted.

In addition, when Chaker requested a modification hearing if the

condition did restrict protected speech, SVER1-12, the district court never held a
hearing or issued an order denying the request, ER263-64; this further put Chaker on
notice that the condition in fact did not restrict protected speech.
The government has no response to these points, other than to suggest that
when the sentencing court told Chaker that the restriction would not step on his First
Amendment rights, he should have understood it to mean the opposite. GAB35-36.
But no reasonable person could be expected to distort the record in this manner.
Given the sentencing courts statements and actions, the condition deprived Chaker
of due process facially and as applied to the protected, forced out statement.
2. The condition is vague because it mixed separate torts
Even if this Court determines that the condition originally imposed clearly
restricted all protected speech, the overlap of harassment and defamation law in the
condition makes it void for vagueness. The revocation court, like the government,
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agreed with Chaker that the condition limited only harassment and stalking. ER41,
44; AOB8-9; GAB32-33. But the revocation court, like the government, then sought
to merge elements of defamation and publication of private facts into its application
of harassment under the condition. ER41, 44; GAB33. As a legal principle, this is
simply incorrect; the torts are entirely distinct, and no reasonable person would have
anticipated their arbitrary commingling. The inadequacy of the notice is especially
pronounced given the sentencing courts repeated caveat that it did not intend to step
on Chakers First Amendment rights. In view of the context in which the court
imposed the condition, the caveat must be understood to mean that the court did not
intend to curtail more than harassing conduct. But by linking harassment to a list
of examples that included defamation and publication of private facts, the condition
generate[s] confusion [and] unpredictability. Johnson, 135 S. Ct. at 2561. For this
reason, too, the condition violates due process.
3. The condition is vague because it requires vindictive motive but not actual
malice or intent to harass
Having determined that the condition subsumed a defamation analysis within
a harassment analysis, the revocation court failed to apply the most essential elements
of either:

scienter.

AOB35-39.

The governments response to this point is

ambivalent. On the one hand, the government argues that the court was required to
apply the actual-malice and intent-to-harass requirements of defamation and
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harassment, respectively. GAB33. On the other hand, the government indicates that
it was okay for the court to do away with these elements in applying the condition
here. GAB53. The governments response shows that the no one could have
anticipated that the condition would be interpreted the way the revocation court
interpreted it and that the condition was enforced in an arbitrary and discriminatory
manner.
The government writes that when a defamatory statement involves a matter of
public concern, the government is constitutionally required to prove both the
statements falsity and the defendants fault.

GAB33 (quoting Blacks Law

Dictionary 733 (8th ed. 2004)); see also New York Times, 376 U.S. at 285-86. Indeed,
the ability to criticize public officials effectively, hence diminish[ing] their official
reputation, is the fundament of defamation law. New York Times, 376 U.S. at 273.
Thus, whatever infringement on First Amendment rights the condition permitted,
even the government agrees that knowing falsitythe actual-malice standard of New York
Timesremains sacrosanct under the condition. GAB33. Yet the revocation court
expressly disavowed application of the actual-malice requirement where the matter is
of public concern. ER107. The court determined that a statement falsely implying a
public officials wrongdoing would violate the condition whether falsity was known or

16

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not. This complete about-face of established defamation law was arbitrary and
unforeseeable.
Similarly, while the government emphasizes the centrality of scienter to the
harassment analysis, GAB33, 47, it fails to respond to Chakers argument that the
revocation court failed to apply the element, AOB35-37. The revocation court paid
lip service to the scienter requirement, see ER44, 107 (referencing United States v.
Osinger, 753 F.3d 939, 945 (9th Cir. 2014)), but did not meaningfully require it in
enforcing the condition against Chaker. Instead, the court swapped out an intent-toharass analysis for a vindictive-motive analysis. ER117-18, 119, 125, 128. The court
stated that the definition that Osinger embraces,they refer to Blacks Dictionary,
and they say look, its words or conduct or actions that are directed at a specific person
that annoybut the gist of it is dont be vindictive by making up stuff about people
that youre crossways with, dont do that. See ER117-18; see also ER119, 125, 128
(replacing intent analysis with inquiry into whether Chaker was mad at Fazal). But
motive and intent are two different inquiries, and the former does not prove the latter.
See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007); Hustler Mag., Inc. v. Falwell,
485 U.S. 46, 53 (1988). Chaker could not have anticipated that scienter could be
proven by proxy to motive in enforcing the condition against him.

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In short, when the sentencing court told Chaker that the condition protected
his Amendment rights but the revocation court determined that it did not, Chaker
lacked notice that the forced out statement could constitute a violation and was
subjected to arbitrary and discriminatory enforcement of the condition against core
protected speech. And when the condition was interpreted to cover a mix of
harassment and defamation law but omitted the most essential elements of both,
Chaker had inadequate notice and was arbitrarily revoked. Invoking so shapeless a
provision to revoke supervised release violated Chakers fundamental due-process
rights. Johnson, 135 S. Ct. at 2560.
B. The condition violates the First Amendment because it is substantially
overbroad
A statute is substantially overbroad in violation of the First Amendment if it
sweeps in a substantial amount of protected speech. See Virginia v. Hicks, 539 U.S.
113, 118-19 (2003). If the revocation courts interpretation of the condition is correct,
the condition does just that.
Criticism of government is the beating heart of First Amendment doctrine. See
Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Thus, even if the condition put in place at
sentencing may be understood as encroaching on the margins of First Amendment
rights, imposing criminal penalties for criticizing the government simply goes too far.
Specifically, any definition of the condition that holds a statement to be defamatory
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harassment not in spite of, but because it criticizes a public official, sweeps in far too
much protected speech to pass muster. Yet the revocation court said that a statement
would annoy, alarm, or cause substantial emotional distress to a law enforcement
officer if it implies wrongdoing and moral turpitude. ER104-05. At the very least,
the element of actual malice must apply. Yet the revocation court expressly rejected
this requirement. ER107. Any restraint of speech calling foul on police, irrespective
of whether the statement was knowingly false, is substantially overbroad.
Similarly, to the extent that a motive analysis can replace an intent analysis here,
the condition is substantially overbroad.

The law presumes that a scienter

requirement applies to each element of a criminal statute, see Elonis v. United States,
135 S. Ct. 2001, 2011 (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 72
(1994)).

And as the government itself recognizes, supervised-release conditions

impute an intentionality requirement. GAB44 (citing United States v. Soltero, 510 F.3d
858, 867 n.9 (9th Cir. 2007); United States v. Gnirke, 775 F.3d 1155, 1162 (9th Cir.
2015)).

But, as described supra in Section II.A.3, the revocation court never

meaningfully applied this requirement.


Without once addressing the revocation courts disavowal of the actual-malice
standard or its substitution of motive for intent, the government claims that the
condition is not overbroad because it is not clear what narrower condition would
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work to curb [Chakers] behavior and facilitate his rehabilitation. GAB46. This is
short-sighted. As this Court en banc recently observed, there are a number of
narrowing strategies for preventing First-Amendment overbreadth, and many of
these could have been employed to curb threatening and defamatory speech and
facilitate rehabilitation here. United States v. Swisher, --- F.3d ----, 2016 WL 142591, at
*6 (9th Cir. Jan. 11, 2016) (en banc). For example, the condition could have required
a showing that the violative statements caused a specific harm or were made in a
context where [they] are most likely to cause harm. Id. (quotes and citation omitted).
In addition, the condition could:
(1) defin[e] the crucial terms in the existing special condition in a way
that (a) provides clear notice to [Chaker], (b) includes a mens rea
requirement (such as intentional conduct), and/or (c) is not broader than
reasonably necessary to achieve the goals of 18 U.S.C. 3553(a)(2)(b),
(a)(2)(C), and (a)(2)(D), see 3583(d); and (2) narrow[] the scope of
proscribed conduct, such as by (a) focusing on [speech that threatens,
incites, or causes substantial emotional distress].
United States v. Adkins, 743 F.3d 176, 196 (7th Cir. 2014). In short, there were plenty
of ways that the condition could have been drawn more narrowly to achieve the
relevant goals. Because it was not, the condition is substantially overbroad and must
be vacated.

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III.

Revocation Was Erroneous Because the Evidence Was Insufficient to


Prove a Violation of the Condition

Chaker argued in his opening brief that the revocation is erroneous even if the
condition otherwise passes muster because all of the evidence, viewed in the light most
favorable to the government, failed to show by a preponderance that the forced out
statement violated the condition. AOB44-53. The revocation court determined that
the statement had to meet at least some elements of defamation and at least some
elements of harassment. But the only evidence offered by the governmentFazals
email to the probation officerfailed to establish these hybrid elements. Even if this
Court determines that only harassment needed to be proven, the evidence still was
insufficient to do so.
A. The evidence did not prove the harassment-defamation standard applied
by the revocation court
The revocation court stated that the evidence had to prove some elements of
defamation law, and the government agrees that this was required. GAB33. Yet the
evidence did not prove falsity, actual malice, or other elements of defamation law
acknowledged by the government to be essential.
Throughout the lengthy revocation hearing, the court placed considerable
emphasis on the falsity requirement. ER101-05; ER146. The court presumed that
the statement that Fazal had been forced out of her previous post was false. The
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court demanded that Chaker disprove it, and then rejected his proffer. ER111, 120,
128, 130-31, 134. And, when the court eventually asked the government about it, the
government responded only that it didnt believe falsity needed to be proven. ER127.
The court then concluded that the statement was an out-and-out lie. ER126; 128.
But absolutely nothing in the record supports this. Significantly, Fazals emailthe
only evidence offerednever complains that the statement is untrue. ER162.
The government offers two explanations for this unsupported finding. First,
the government writes that Chaker likely made up the claim that Fazal had been
forced out of the Las Vegas police department, [so] it was not implausible for the
district court to conclude that the post constituted harassment. GAB51. But the
musings of the government on appeal as to the likelihood of falsity cannot make up
for the absence of any evidence to that effect in the court below. The preponderanceof-the-evidence standard, after all, requires evidence that something is more likely
than not. And such evidence would have been relatively straightforward to present
heretestimony from Fazal, employment records, a letter from a former supervisor,
something indicating that she had left the police department voluntarily and on good
terms.

But the government simply offered none.

The courts unfounded

assumptions or groundless inferences although based upon proper and accurate


information [of Fazals quotes] may not, consistent with due process, form the basis
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of sentence. United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987); see also
United States v. Hanna, 49 F.3d 572, 577 (9th Cir. 1995).
Second, the government claims that this evidentiary deficienc[y]w[as] not
required to be proven. ER53. While it is true that the condition should have been
read as barring only harassment, not defamation, the condition as applied included a
defamation-lite standard, with a heavy focus on falsity. Even the government writes
that a defamatory statement involving a matter of public concern and made with
intent to harass would violate the condition only if the government proved the
statements falsity. GAB33. To the extent that the governments brief simultaneously
argues that the condition requires some elements of defamation to be proven and that
the condition does not require any elements of defamation to be proven, it illustrates
that the condition imposed is void for vagueness, as argued supra in Section II.
The government also acknowledges that it was required to prove actual malice
to show that a defamatory statement violated the condition. GAB33 (the plaintiff
is constitutionally required to provethe defendants fault). Here, the revocation
court decided not to apply the actual-malice requirement. ER107-08. But even if it
had, there was no evidence offered that could have proved it. Fazals email did not
even claim that the forced out statement was false, let alone that Chaker knew it
was false. ER161-63. And the evidence showed that Chaker had gleaned the
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information from Googling and seeing other blogs about Ms. Faz[a]l, so it was
independent. ER111. Chaker told the court that I did things I think that were
proper that I had evidence behind and I have some genuine belief that he materials
that I was posting had some had some merit to it. ER134-35. Thus, there was
no evidence proving actual malice.
Finally, the government discounts without discussion Chakers argument that
the evidence was insufficient to establish other elements that the revocation court held
were required: that the statement be one of fact rather than opinion, vindictive
motive, extortionate aim, and damage to reputation. The government summarily
states that [e]ven if the United States were required to prove those facts to support
proof of harassment, the district court did not clearly err in concludingthat [the
forced out statement] purported to convey facts, that Chaker harbored a vindictive
motive and that Fazal suffered harm from the posts. GAB53 n.7. But the government
does not point to any evidence supporting these elements, and, as set forth in Chakers
opening brief, there was none. AOB48-53.
B. The evidence did not prove even straightforward harassment
Even if this Court determines that a strict harassment analysis governs, and not
the harassment-defamation amalgam that the revocation court applied, the evidence
still failed to prove the violation. This Court has cited with approval the definition
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of harassment set forth in Blacks Law Dictionary: words, conduct, or action


(usu[ally] repeated or persistent) that, being directed at a specific person, annoys,
alarms, or causes substantial emotional distress in that person and serves no legitimate
purpose. Osinger, 753 F.3d 939, 945 (9th Cir. 2014). The revocation court adopted
this definition. ER43-44. Applying the definition here, the evidence would have to
show that the forced out statement was (1) directed at Fazal, (2) reasonably would
have annoyed, alarmed, or caused substantial emotional distress to Fazal, and (3)
served no legitimate purpose. None of these elements were proven by Fazals email.
First, the email failed to show that the words were directed at Fazal. The
statement was made on Chakers police accountability blog and was directed to
criminal defense or civil rights attorney[s] seeking credible material for
impeachment. ER162. Although Fazal was the subject of the statement, there was
no evidence that the statement was emailed to her or her coworkers or otherwise was
directed to her. This is a far cry from the harassing conduct in Osinger, for example,
which included repeated verbal threats to the defendants ex-girlfriend, posting
sexually explicit pictures of her on a Facebook page that the defendant created in a
name close to hers, and sending emails to her coworkers and friends containing
explicit photos. See 753 F.3d at 941, 943. Nor is this a situation in which the
harassment was directed at a private individual and revealed intensely private
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information about [the victim] that were never in the public domain before [the
defendant] began his campaign to humiliate [the victim]. United States v. Petrovic, 701
F.3d 849 (8th Cir. 2012) (discussed in Osinger, 753 F.3d at 948). Instead, the evidence
showed that the speech was addressed to the public about a public official discussing
material in the public domain. It was thus insufficient to prove the first element of
harassment.
With regard to the second element, the revocation court correctly determined
that whether the target of allegedly harassing speech would be annoyed, alarmed, or
experiences substantial emotional distress is an objective analysis. ER58; see also
United States v. Bagdasariyan, 652 F.3d 1113, 1118-19 (9th Cir. 2011) (applying
objective determination to criminal threat statute).

The court thus rightfully

discounted Fazals subjective claim in her email to the probation officer that she was
in fear based on the blogposts. ER58; see also ER162. And while the court did
determine that no law enforcement officer would want that kind of information
[implying wrongdoing and turpitude] disseminated on them because they would be
concerned about [their] public reputation, it clearly erred in concluding that this
satisfied the second element of harassment. ER117-18. It is simply implausible to
think that anytime a public official bristles at professional criticism, this is tantamount

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to annoyance, alarm, or substantial emotional distress within the meaning of


harassment.
Finally, there was no evidence that the statement lacked a legitimate purpose.
By its terms, the statement was intended to promote police accountability and offer
credible impeachment evidence to those litigating police misconduct. ER162. And
Chaker told the court that the posting was about police accountability; he was
writing about concerns about someone whos working for the government, inviting
others to do their own investigation. ER112-13.
In short, none of the essential elements of harassment were established by a
preponderance. This leaves the implicit element of intent to harass, which the
revocation court, like the government, acknowledged was required. ER107; GAB47.
The government claims that scienter was sufficiently proven through Chakers
history with Fazal and the fact that the information relayed was false. GAB25. But
as discussed above, the evidence did not establish that the forced out statement was
false. So even if falsity theoretically could prove intent to harass, 3 it does not do so
here. Nor does Chakers history with Fazal establish intent to harass. Their
history consists of Fazal testifying against Chaker in a court hearing. ER161. It was

This is a dubious claim. That defamation law requires separate proof of both
falsity and actual malice where the statement concerns a matter of public concern
shows that the bare fact of falsity cannot substitute for a finding of knowingness.
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this history that led Chaker to believe that she was impeachable. And it was
impeachment material that Chaker sought to disseminate in writing the forced out
statement in question here and the other blogposts excerpted in Fazals email. ER162.
Even assuming the veracity of Fazals allegation that Chaker offered the material
because he was furious that she testified against him, for all of the reasons stated
supra in Section II.A.3 and in the opening brief, AOB35-37, being motivated to speak
out against someone based on a gripe is not equivalent to intending to harass them.
Thus, the evidence simply does not establish the scienter element.
As a final note, the government troublingly asserts in its reply brief that Chaker
hadindicated [that] the blog [statement] was designed to harass Fazal. GAB50
(citing SER227). But the record citation that the government points to shows no such
indication, and none exists elsewhere in the record. Instead, the evidence established
that the statement was verified and was designed for the legitimate purpose of
promoting police accountability. ER113, 134.
Setting aside its affirmative misstatement of the record, the governments
responses to Chakers sufficiency challenge, like the revocation courts findings,
proceed purely on assumption and ignore the evidence before the court. This
evidence, viewed in the light most favorable to the government, failed to prove the

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essential elements of harassment or the applied harassment-defamation standard.


Accordingly, this Court should reverse the revocation order.
IV.

The New Special Conditions Imposed Are Impermissibly Vague,


Overbroad, and Substantively Unreasonable

This case must be reversed for yet another reason: the new special conditions
imposed upon sentencing for the revocationthat Chaker not stalk/harass/defame as
previously conditioned (Condition 5), ER8; not reveal private information of
others or threaten others by posting false information, disparage or defame others on
the internet (Condition 11), ER8; and not send anonymous emails (Condition
13), ER277 (Dckt. #46, Minute Order)are unconstitutionally vague and overbroad
and are substantively unreasonable. AOB54-61.
The government agrees that all three conditions are unconstitutional if they
prohibit more than harassment. GAB56 n.8, 57-58 & n.9. However, the government
contends that the conditions should be upheld because the court intended them to
restrict only harassment. GAB56-58. But the conditions reach far beyond mere
harassment.
For all of the reasons identified in Section II and set out in the opening brief,
AOB54-55, Condition 5 covers a drifting mix of defamation and harassment law
without the anchor of actual malice or scienter. This makes the condition vague and
overbroad.
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With regard to Condition 11, while the court claimed at sentencing to be


restricting harassment, ER138, it also established that the reach of the condition is far
broader. The court excised a scienter element under Condition 11, stating instead
that a statement would be a violation if it looks like it was made vindictively. ER15657. No harm or damages element is included. Cf. Swisher, 2016 WL 142591, at *5.
And while the court indicated that the second and third restrictions involve speech
made for no purpose other than to compel a change [in] behavior, ER138, the first
onerevealing private informationdoes not include this caveat, and so could include
revealing private information for a legitimate purpose.

In short, the courts

pronouncement was inconsistent, and the condition covers a vast array of speech that
exceeds the fundamental elements of harassment. Moreover, because the condition
restricts the publication of private facts that tend to put someonewhether a public
or private figurein a bad light, it amounts to viewpoint discrimination, which is all
but per se unconstitutional even in the supervised-release context. See AOB57 (citing
R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992); RODNEY A. SMOLLA AND MELVILLE B.
NIMMER, SMOLLA

AND

NIMMER

ON

FREEDOM

OF

SPEECH, 3:10 (updated 2015).

Accordingly, Condition 11 is unconstitutional and substantively unreasonable.


With regard to Condition 13, the court failed even to apply the harassment
label that it slapped onto its pronouncement of Condition 11. Condition 13
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therefore is not susceptible to a construction that limits its terms to harassment. The
government nonetheless seeks justification for such a limiting construction in an
unpublished case, United States v. Hayes, in which the sentencing court justified a
restriction on personal-computer use based on its belief that computers offer
anonymity and a convenient means of continued harassment. 283 F. Appx 589, 594
(9th Cir. 2008) (quoted at GAB57). But the court here provided no such justification
for its decision to bar anonymous emails. Its failure to narrow the restriction on
anonymous emails to harassing emails thus infringes on a core First Amendment right,
making it substantially overbroad.
For these reasons, Conditions 5, 11, and 13 must be vacated as
unconstitutional and substantively unreasonable. Alternatively, to the extent that this
Court agrees with the government that the conditions can be read to restrict only
harassment, it should impose a limiting construction collapsing all three conditions
into a single, clear, straightforward condition that captures the district courts intent:
Chaker may not stalk and/or harass.
CONCLUSION
For the foregoing reasons, this Court should vacate all conditions not directly
and solely directed at harassment, including any discussion of defamation and privacy

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and anonymous speech. This Court should also find that Chakers forced out
statement was not harassment and therefore that he did not violate the condition.
Respectfully submitted,
DATED: January 22, 2016

s/ Sarah R. Weinman
Sarah R. Weinman
Federal Defenders of San Diego, Inc.
225 Broadway Street, #900
San Diego, California 92101
619.234.8467
Sarah_Weinman@fd.org
Attorneys for Defendant-Appellant

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CERTIFICATE OF COMPLIANCE
I certify that, pursuant to Federal Rule of Appellate Procedure 32(a)(7)(c) and
Ninth Circuit Rule 32-1, the attached reply brief is proportionately spaced, has a
typeface of 14 points or more and contains 6,892 words. This does not exceed the
7,000 words allowed by the rules.

DATED: January 22, 2016

s/ Sarah R. Weinman
Sarah R. Weinman
Federal Defenders of San Diego, Inc.
225 Broadway Street, #900
San Diego, California 92101
619.234.8467
Sarah_Weinman@fd.org
Attorneys for Defendant-Appellant

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CERTIFICATE OF SERVICE
I certify that on January 22, 2016, I electronically filed the foregoing reply
brief with the Clerk of the Court for the U.S. Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
s/ Sarah R. Weinman
Sarah R. Weinman
Federal Defenders of San Diego, Inc.
225 Broadway Street, #900
San Diego, California 92101
619.234.8467
Sarah_Weinman@fd.org
Attorneys for Defendant-Appellant

34