Govn Opposition Dismiss Superced Indict

Case 3:04-cr-00373-AET Document 81
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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY UNITED STATES OF AMERICA v. STOP HUNTINGDON ANIMAL CRUELTY USA, INC., KEVIN KJONAAS, a/k/a Kevin Jonas, a/k/a Steve Shore, a/k/a Jim Fareer, LAUREN GAZZOLA, a/k/a Angela Jackson, a/k/a Danielle Matthews, JACOB CONROY, JOSHUA HARPER, ANDREW STEPANIAN, DARIUS FULLMER, and JOHN MCGEE : : : : : : : : : Criminal No. 04-373 (MLC)
MEMORANDUM OF THE UNITED STATES IN OPPOSITION TO MOTIONS OF DEFENDANTS TO DISMISS THE SUPERSEDING INDICTMENT
CHRISTOPHER J. CHRISTIE United States Attorney 970 Broad Street Newark, New Jersey 07102 (973) 645-2700
On the Memorandum: Charles B. McKenna Ricardo Solano Jr. Assistant U.S. Attorneys
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TABLE OF CONTENTS Cross-Reference Tables . . . . . . . . . . . . . . . . . iii 1 2 14 14 15 16 26 30 32 37
Preliminary Statement . . . . . . . . . . . . . . . . . . Statement of Facts Argument I. . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . THE SUPERSEDING INDICTMENT PROPERLY ALLEGES CRIMINAL ACTIVITY AND SHOULD NOT BE DISMISSED A. B. C. D. E. The Standard. . . . . . . . . . . . . . . . The Superseding Indictment. . . . . . . . . The Use By SHAC of Websites . . . . . . . . References to Congressional Testimony on 18 U.S.C. 43 . . . . . . . . . . . . . Time Frame of The Conspiracy . . . . . . .
II.
VENUE IS PROPERLY LAID IN THE DISTRICT OF NEW JERSEY . . . . . . . . . . . . . . . . . .
III. UNDER 18 U.S.C. 43(a) IT IS A FEDERAL OFFENSE TO CONSPIRE TO COMMIT ANIMAL ENTERPRISE TERRORISM . . . . . . . . . . . . . . . . . . . IV. V. THE CORPORATE DEFENDANT CAN PROPERLY BE CHARGED WITH CONSPIRACY IN THIS CASE. . . . . . . . . . THE SUPERSEDING INDICTMENT PROPERLY ALLEGES AND THE STATUTES CHARGED REQUIRE AN INTERSTATE COMMERCE NEXUS . . . . . . . . . . . . . . . . THE CRIMINAL CONDUCT CHARGED IN COUNT ONE OF THE SUPERSEDING INDICTMENT, 18 U.S.C. 43(a), IS NOT PROTECTED UNDER THE FIRST AMENDMENT. . . . . . A. B. C. The Conduct Alleged In Count One Is Not Protected Speech . . . . . . . . . . . The Animal Enterprise Terrorism Statute Is Not Facially Overbroad . . . . . . . . . The Animal Enterprise Terrorism Statute -i-
41 49
55
VI.
59 59 85
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Is Not Overly Vague . . . . . . . . . . . . VII. THE CRIMINAL CONDUCT CHARGED IN COUNTS TWO THROUGH FIVE OF THE SUPERSEDING INDICTMENT, 18 U.S.C. 2261A, IS NOT PROTECTED UNDER THE FIRST AMENDMENT. . . . . . . . . . . . . . VIII. THE CRIMINAL CONDUCT CHARGED IN COUNT SIX OF THE SUPERSEDING INDICTMENT, 47 U.S.C. 223, IS NOT PROTECTED UNDER THE FIRST AMENDMENT. . . . IX. X. XI.
90
94
99
THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINST DEFENDANTS FULLMER AND HARPER. . . . . 105 DEFENDANT FULLMERS REQUEST FOR SEVERANCE LACKS FACTUAL AND LEGAL BASIS . . . . . . . . . . . . THIS COURT SHOULD DENY DEFENDANT HARPERSS MOTION TO SUPPRESS BECAUSE THE WARRANT TO SEARCH HARPERS RESIDENCE WAS BASED UPON PROBABLE CAUSE AND IT DESCRIBED THE ITEMS TO BE SEIZED WITH PARTICULARITY. . . . . . . . . . . . . . . . . 109
112
XII. THE GOVERNMENT HAS NO OBJECTION TO THE DEFENDANTS' REQUESTS TO JOIN IN THE APPLICABLE MOTIONS FILED BY THEIR RESPECTIVE CO-DEFENDANTS . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . .
124 125
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Cross-Reference Tables Defendant SHACs Brief Point I Venue Point II 18 U.S.C. 43(a)(1) Does Not Have A Conspiracy Count Point II Superseding Indictment Fails To Show Two Natural Person Who Are Authorized To Bind Corporation Conspired Point II Corporation Cannot Conspire With Own Employees Point III Superseding Indictment Is Lacking Interstate Nexus Point IV Prosecution under 18 U.S.C. 43(a) Violates First Amendment Point V The 18 U.S.C. 2261A Count Is Legally Insufficient Point VI The 47 U.S.C. 223 Count Is Legally Insufficient Point VI The 47 U.S.C. 223 Count Violates The First Amendment Response in Governments Brief Point II Point III
Point IV
Point IV Point V
Point VI
Points I, VII
Points I, VIII Point VIII
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Defendant Kjonaass Brief Point I, pages 29-40, 43-44 Count One Of The Superseding Indictment Is Legally Insufficient Point I, pages 39-40, 41, 4450, 53, 55-56 The Charges In Count One Violate The First Amendment Point II, pages 57-61 Counts Two Through Five Of The Superseding Indictment Are Legally Insufficient Point II, page 61 The Charges In Counts Two Through Five Violate the First Amendment Point III, pages 62-64 Count Six Of The Superseding Indictment Is Legally Insufficient Point II, page 63, 64-65 The Charges In Count Six Violate the First Amendment
Response in Governments Brief Point I
Point VI
Point I
Point VII
Point I
Point VIII
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Defendant Gazzolas Brief Point II 18 U.S.C. 43 Is Unconstitutional On Its Face And As Applied Point III 18 U.S.C. 2261A Is Unconstitutional As Applied Point IV 47 U.S.C. 223 Is Unconstitutional On Its Face And As Applied
Response in Governments Brief Point VI
Point VII Point VIII
Defendant McGhees Brief Point I Count One Is Legally Insufficient As To Defendant McGhee
Response in Governments Brief Point I
Defendant Fullmers Brief Point I Count One Is Legally Insufficient As To Defendant Fullmer Point IV Defendant Fullmers Case Should Be Severed1
Response in Governments Brief Point I, IX
Point X
Defendant Harpers Brief Point I The Superseding Indictment Is Vague And Lacks Probable Cause2 Point III Motion For Suppression
Response in Governments Brief I, IX
Point XI
Raised in memorandum in support of preliminary motions, filed on October 25, 2004. Raised in memorandum in support of preliminary motions, filed on October 29, 2004. -v2
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PRELIMINARY STATEMENT The United States respectfully submits this memorandum of law in response to the motions to dismiss the Superseding Indictment submitted by the defendants in this case. The United
States respectfully reserves its right to supplement its responses by oral argument.
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STATEMENT OF FACTS The instant action arises from a conspiracy on the part of the defendants to force the closing of Huntingdon Life Sciences, (HLS) an animal testing laboratory that operates a facility in East Millstone, New Jersey. HLS (HLS) is a Delaware corporation engaged in the business of contract animal testing, largely for pharmaceutical companies. It has testing laboratories in the United Kingdom and Stop Huntingdon Animal Cruelty, USA,
East Millstone, New Jersey.
Inc., (SHAC) is a Delaware corporation which for the relative period alleged in the Superseding Indictment did business in New Jersey. SHACs avowed purpose was, and is, to shut down the HLS
because it is involved in the scientific testing of laboratory animals. As alleged in the Superseding Indictment, SHAC was formed with the specific purpose of interrupting the business of HLS and to ultimately force it to cease operations altogether thereby causing a total disruption of its business. SHAC was operated from a residence at 101 Home Street in Somerset, New Jersey. Defendant Kjonaas, the then-President of
SHAC, lived at 101 Home Street with defendants Gazzola, Conroy and others. As is set forth in the Superseding Indictment, SHAC
has, by its own account, used a multi-pronged attack against HLS targeting its employees and shareholders as well as companies (and their employees) that receive services from, or provide services to, HLS. SHAC has distributed a newsletter and operated - 2 -
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a series of websites that disseminated its animal rights ideology and furthered its mission by, among other things, posting information relating to individuals and organizations that SHAC targeted for action. Among the websites that SHAC has operated Information that has appeared on the
was www.shacamerica.net.
SHAC website has included names and addresses as well as other personal information about individuals who were employed by HLS and other targeted companies. The SHAC website and its other
means of communication were designed to target individuals and companies for the purpose of direct action in order to force them from doing business with HLS. Indeed, the purpose of the
SHAC website was to provide information to SHAC sympathizers and to incite them to cause physical harm to property and emotional harm to individuals all in furtherance of driving HLS out of business, thereby disrupting its business by forcing it to cease its operations.3 The Superseding Indictment alleges specific postings on the SHAC website and when those postings were made. The Superseding
Indictment also alleges the date, time and place of specific attacks that occurred after the SHAC website postings. Further,
the Superseding Indictment alleges the specific dates of postings on the SHAC website that reported the accounts of attacks that
After the original Indictment in this case was unsealed, the SHAC website changed in appearance and content. The discovery provided to defendants contains the website pages that the Government will rely upon at trial in support of the charges in the Superseding Indictment. - 3 -
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occurred and alleged the purpose of the postings to bring about other attacks at the same locations or other locations provided by the SHAC website. In short, the Superseding Indictment sets
forth a pattern of activity on the part of the defendants that is specific as to time, place and manner. It fully appraises the
defendants of what they are charged with and permits them information necessary to mount a defense. Based upon this and other information, a grand jury sitting in Newark, New Jersey returned a five Count Indictment against SHAC and seven individuals4 charging in Count One a conspiracy to violate Tile 18, United States Code, Section 43, the Animal Enterprise Terrorism statute, in that the individual defendants conspired with one another and with others to use a facility in interstate and foreign commerce for the purpose of causing the physical disruption to the functioning of HLS and to intentionally damage and cause tho loss of property used by HLS in an amount exceeding $10,000. Specifically, the defendants
targeted individuals and companies for the purpose of causing the disruption of HLS business.5 Count Two charges SHAC and three of the individual
The Indictment was returned on or about May 20, 2004. The individual defendants were Kevin Kjonaas, the then-president of SHAC; Lauren Gazzola; Jacob Conroy; Joshua Harper; Andrew Stepanian; Darius Fullmer; and John McGhee. Defendants argue that only direct harm to HLS can violate 18 U.S.C. 43. However, harm to companies doing business with HLS for the express purpose of disrupting the business of HLS in the course of the conspiracy is actionable under the statute. - 4 5
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defendants with conspiring to violate the interstate stalking statute, 18 U.S.C. 2261A(2), and Counts Three through Five charges SHAC and the same three defendants6 with substantive counts of stalking. On September 16, 2004, the grand jury
returned a Superseding Indictment that added a sixth count charging SHAC and four individual defendants with conspiring to use a telecommunications device to abuse, threaten and harass persons contrary to 47 U.S.C. 223(a)(1)(C), in violation of 18 U.S.C. 371. The essence of the conspiracy to violate the Animal Enterprise Terrorism Statute is that the defendants, through the use of the SHAC corporate entity, embarked on a campaign to enlist and incite animal rights activists to engage in activity meant to harm the business of HLS in any manner available -including violence. SHAC utilized e-mail and web-based
communications to disseminate information and inflame its constituency and call them to violent action. The defendants
also coordinated the activities of individuals in furtherance of the campaign to shut down HLS and thereby disrupt its business operations. SHAC espoused and encouraged others to engage in what it termed direct action. The SHAC website described direct action
as activities which operate outside the confines of the legal system. For instance, the SHAC website posted what it termed
The individual defendants were Kevin Kjonaas; Lauren Gazzola; Jacob Conroy. - 5 -
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the top 20 terror tactics which described various types of direct actions that could be taken against individuals7. tactics included: demonstrations at ones home using a loudspeaker; abusive graffiti, posters and stickers on ones car and house; invading offices and, damaging property and stealing documents; chaining gates shut, and blocking gates; physical assault including spraying cleaning fluid into ones eyes; smashing the windows of ones house while the individuals family was at home; flooding ones home while the individual was away; vandalizing ones car; firebombing ones car; bomb hoaxes; threatening telephone calls and letters including threats to kill or injure ones partner or children . . . . . . ; e-mail bombs in an attempt to crash computers; sending continuous black faxes causing fax machines to burn out; telephone blockades by repeated dialing to prevent the use Defendant Kjonaas argues that this posting and certain others, alleged in the Superseding Indictment to have occurred outside the time frame of the conspiracy, fail in and of themselves to state a cause of action. See Kjonaas Mem. at 3738. As with other postings which occurred before the time frame for the conspiracy in the Superseding Indictment, they remained on the website after the start of the conspiracy and were therefore adopted by the conspirators. In addition, they had an impact on the victims who became aware of the activities of SHAC through the postings that remained on the website when they themselves became SHAC-targets. - 6 7
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of the telephone; and arranging for an undertaker to call to collect ones body. SHAC also coordinated telephone and e-mail blitzes as well as computer blockades of HLS and companies that it targeted for direct action. In order to facilitate these activities, the SHAC
website would list telephone numbers, facsimile numbers and computer downloads which assisted individuals in sending massive amounts of e-mails to targeted addresses. SHAC and the
defendants, through the use of the SHAC website, coordinated the days that certain companies would be acted against in order to maximize the damage caused by various methods of attack. Perhaps the most insidious aspect of the SHAC campaign to shut down HLS was the posting of personal information of people who either worked for HLS or for companies that did business with HLS. This information included home addresses, home telephone
numbers, the names of spouses and children of the employees and other information such as the types of vehicles they owned, where they went to church and where their children attended school. Postings on the website encouraged and incited direct acting against these people and very often acts of vandalism were perpetrated on the homes and personal property of the individuals whose personal information appeared on the website. Once direct action was carried out against these individuals, the SHAC website reported on the vandalism in a manner designed to foster additional acts of terror against those employees as well as others whose information had been posted on - 7 -
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the SHAC website.
For instance, the SHAC website posted
information on or about April 15, 2001 which stated in part that well be at their offices, at their doorsteps and on their computers. There will be no rest for the wicked.
As set forth in the Superseding Indictment, on or about March 31, 2001, the SHAC website listed the name and address of an HLS employee and within days, rocks were thrown through the individuals home windows. One of his cars was overturned in his When the individual
driveway and a second car was vandalized.
ultimately left the employ of the HLS, the SHAC website touted that he had resigned after months of pressure, including protests property destruction, [and] home blockades at home and work. This message was designed not only to spur others on to
similar actions but to warn other HLS employees that they too were in harms way and could be targeted at any moment. as is set forth in the Superseding Indictment, other HLS employees have also had information posted on the website about them which led to acts of vandalism and destruction at their homes. The end game of this conspiracy of terror was the Indeed,
destruction of HLS. This pattern of personal information being posted on the SHAC website about employees of companies along with language inciting violence against them; followed by attacks upon their homes and personal property due to the incitement; followed by SHAC website postings touting the attacks that occurred in a manner designed to spur individuals on to additional direct - 8 -
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action; continued time and again over the years since 2001.
Not
only were homes vandalized but clubs that employees belonged to were also vandalized or harassed. For instance, as is set forth
in the Superseding Indictment, after posting the name of the golf club where an employee of a company that provided insurance services for HLS was to be,8 the golf green of the golf course were vandalized. That employees home was also vandalized.
These acts of violence, as set forth in the Superseding Indictment, were then reported on the SHAC website. Indeed, in
one posting on the SHAC website, it boasted that [d]amages from this action may in fact exceed hundreds of thousands of dollars between the damage to the well maintained golf course, the disruption to the PGA event and to the club itself. In yet
another instance set forth in the Superseding Indictment an employee of a company that SHAC targeted because SHAC believed it did business with HLS had information about an orienteering club that she belonged posted on the SHAC website stating in part: K**** the killer S****** of C***** Corp.s toxicology department has been infiltrated. She is a long time treasurer of the Cascade Orienteering Club .. The Clubs Officers; board members; and co-ordinators , and members have all been written polite e-mails explaining the nature of K**** S*******dirty business. They were asked for personal or embarrassing information on K****. When no one responded in days they were bombarded with e-mails depicting K**** as the cold blooded killer she is. The Clubs e-mail list had also been infiltrated, and now nothing is secret.
SHAC and the defendants believed that if they could force the insurance broker from providing insurance services to HLS, it would be forced to shut down its operations due to a lack of liability and other insurance. - 9 -
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After a demonstration of this same employees home, the SHAC website reported that at about 12 am we bid him a fond goodnight and left questioning. So K****, did you tuck your family in to
bed and explain why we were out there, or were you too cowardly to be home? Either way, we win. Because WE ALWAYS WIN. The
purpose of targeting these individuals for violence was because they worked for companies that did business with HLS. The
defendants attempted through this activity and in many cases succeeded in driving companies from doing business with HLS for the purpose of making it impossible for HLS to do business, thereby disrupting its operation. In addition to the violence perpetrated on certain individuals and companies due to the concerted activity of the defendants, certain victims set forth in the Superseding Indictment were placed in fear of death and serious bodily injury, and feared for the lives of their spouses and children, based upon the publication of their names, home addresses, telephone numbers and other personal information over the interstate lines of the internet in the context of the SHAC website as well as the various visits to their homes by angry groups dressed in menacing garb. These individuals, and the
activities which occurred to cause the emotional distress they live with, are set forth in the Superseding Indictment and borne out in the discovery provided to the defendants. Indeed, various
videotapes chronicling the stalking activity has been turned over during discovery. - 10 -
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Finally, as is set forth in the Superseding Indictment, certain of the defendants conspired to use a telecommunications device to abuse, threaten and harass persons without disclosing their identity in violation of 47 U.S.C. 223(a)(1)(c). The
defendants caused the flooding of business with telephone calls, caused individuals to be harassed at their homes with telephone calls and caused black faxes to be sent to companies all with the purpose of abusing and harassing the recipients of the calls and faxes9. Any doubt about the intent of the defendants is
dispelled by a review of the SHAC web postings as well as the statements of the defendants themselves. Indeed, defendant
Harper, in a tape that was provided to the defendants in discovery stated: as I explained earlier, how to use black faxes, if youve got access to a fax machine, boy, I cant tell ya how great it is. Like uh, ya hit star six seven, ya dial the fax number and you feed it about three sheets of those and ya tape em end to end to end and I - it knocks out the entire line of communication. And Ive worked for-for like, the dumb corporations like Horus before well not exactly Corus, but I know that doing like secretarial work at places like that, it you had to deal with that sort of thing coming through all the time, it would definitely, uh, raise a siege mentality level, in uh, the workplace. Unfortunately for the victims of SHACs campaign, defendant Harper was correct. The defendants have now made the following motions in
In order to ensure the anonymity of the callers and senders of faxes, as is set forth in the Superseding Indictment, the SHAC website instructed its followers to utilize the *67 function to successfully block caller identifications systems from divining the callers telephone number. - 11 -
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support of dismissing the Superseding Indictment: 1. 2. 3. Venue is Improper in New Jersey; 18 U.S.C. 43(a) Does Not Have a Conspiracy Count; The Superseding Indictment Fails To Show Two Natural Person Who Are Authorized To Bind SHAC Conspired; 4. 5. 6. SHAC Cannot Conspire With Own Employees; The Superseding Indictment Is Lacking Interstate Nexus; The Prosecution under 18 U.S.C. 43(a) Violates the First Amendment; 7. The Prosecution under 18 U.S.C. 2261A Violates the First Amendment; 8. The Prosecution under 47 U.S.C. 223 Violates the First Amendment; 9. Permitting defendants to join in the applicable motions filed by their co-defendants. In addition, defendant Fullmer has filed a motion for an order severing his case from the other defendants; and defendant Harper has filed a motion to suppress evidence seized pursuant to a court-authorized search of his residence. For the reasons set forth below, the United States asserts that each of the motions, with the exception of number 9, should be denied.
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ARGUMENT I. THE SUPERSEDING INDICTMENT PROPERLY ALLEGES CRIMINAL ACTIVITY AND SHOULD NOT BE DISMISSED.
Defendant Kjonaas spends a good deal of the first 28 pages of his memorandum of law explaining, in scattershot fashion, what the Superseding Indictment is not.10 Indeed, the Government
admits that at trial far more than what is contained in the Superseding Indictment will be presented to the jury. However,
it is not the purpose of the charging document in this case to lay bare all of the Governments proofs. Rather, the purpose of
the Superseding Indictment in this case is to set forth the elements of the offense in sufficient detail to provide the defendants with notice of the charges against them and to guard against the possibility of double jeopardy. When measured
against the proper legal standard, the Superseding Indictment properly alleges the crimes charged; places the defendants on sufficient notice of what it is they are charged with; and ensures that there is no possibility of double jeopardy.
In providing the Court with its self-serving recitation of what is contained in the Superseding Indictment, defendant Kjonaas misstates and obfuscates its content. For instance, in referring to certain allegations in the Superseding Indictment, Kjonaas claims that there is no time frame (See Kjonaas Mem. at p. 6 (without any time specification) and p. 7 ([t]he indictment, without otherwise defining the relevant time frame). By making this argument, defendant Kjonaas conveniently overlooks that as a preamble to the specific clauses he cites, the Superseding Indictment states At times relevant to this Indictment, thereby incorporating the time periods alleged throughout the Superseding Indictment. [Emphasis added]. Thus, while defendant prefers not to acknowledge it, there is a sufficient temporal grounding for the allegations. - 13 -
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1.
The Standard. For purposes of ruling on a motion to dismiss an
indictment, all well pleaded allegations in the indictment are taken as true. United States v. Eichman, 756 F. Supp. 143, 146 Moreover, as
(S.D.N.Y. 1971), aff'd, 957 F.2d 45 (2d Cir. 1992).
the Eichman Court stated, "[a] motion to dismiss is not a device for the summary trial of the evidence; it is addressed only to the facial validity of the Indictment." Indeed, if an Indictment
is valid on its face, it cannot be challenged on the ground that it cannot be supported by competent evidence. Costello v. United
States, 350 U.S. 359, 363 (1956); United States v. Eisenberg, 773 F. Supp. 662, 709 (D.N.J. 1991). In Costello, the Supreme Court
held that "[a]n indictment returned by a legally constituted grand jury ... if valid on its face, is enough to call for a trial of the charges on the merits," reasoning: If indictments were to be held open to challenge on the ground that there was inadequate and incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. So long as the indictment sets forth the elements of the offense in sufficient detail to provide the defendants with notice of the charges against them and does not present double jeopardy problems, it is impervious to attack on a motion to dismiss. Hamiling v. United States, 418 U.S. 87, 117 (1974),
United States v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir. 1987); - 14 -
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United States v. Eichman, 756 F. Supp. at 146.
It is sufficient
for an Indictment to track the statutory language, "so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Shirk, 981 F,2d
1382, 1389 (3d Cir. 1992), quoting, United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir. 1989); United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir. 1991), cert. denied, 112 S.Ct. 340 (1991). See also, United States v. Scanzello, 832 F.2d 18, 22
(3d Cir. 1987)(conspiracy indictment sufficient if elements of offense are alleged). 2. The Superseding Indictment.
The elements of the conspiracy charged in Count One of the Superseding Indictment are that each defendant conspired and agreed with each other and others to use the facilities of interstate commerce for the purpose of causing a physical disruption to the functioning of Huntingdon Life Sciences, an animal enterprise as defined under the statute and intentionally agreed to cause a loss of property to HLS in an amount exceeding $10,000. The allegations in the Superseding Indictment allege
that the defendants conspired to shut down HLS which would have caused a cessation of its business and therefore a disruption of its work, causing a loss in excess of $10,000. The Superseding
Indictment clearly indicates how each defendant coordinated and was otherwise involved in the conspiracy. The conspiracy charged in Count Two of the Indictment - 15 -
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alleges that SHAC and the individual defendants charged agreed to use a facility in interstate commerce to engage in a course of conduct calculated to place another individual or a member of that persons immediate family in reasonable fear of death or serious bodily injury. The Superseding Indictment sets forth who
the particular victims of the interstate stalking are and, by reference to the preceding paragraphs in Count One, how it was they were placed in fear of death or seriously bodily injury. The Superseding Indictment also alleges some of the particular SHAC web postings that lead to the stalking. Counts Three, Four
and Five, similarly allege specific acts of stalking that the named defendants aided and abetted in carrying out. These
counts, therefore, satisfy the requirements of an indictment. See United States v. Bowker, 372 F.3d 365, 377 (6th Cir. 2004) (The indictments reference to the specific dates and locations of the offenses, as well as the means used to carry them out (travel, internet, telephone) provided [defendant] fair notice of the conduct with which he was being charged.). The conspiracy charged in Count Six alleges that defendants Kjonaas, Gazzola, Conroy, Harper and SHAC knowingly agreed to utilize a telecommunications device to abuse, threaten and harass persons at the called number who received the communication without disclosing the identity of the person utilizing the telecommunications device. In particular, the Superseding
Indictment alleges that the defendants charged in Count Six urged and agreed to have people send what are known as black faxes to - 16 -
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companies for the express purpose of annoying them by monopolizing the recipients fax machines which printed out black pages, thereby using excess amounts of ink, taking large amounts of time, and in instances, burning out the machine unit altogether11. Thus, the charges are specifically set forth in the Superseding Indictment and there is a more than ample factual orientation to permit the defendants to prepare their defenses. Moreover, there is sufficient particularity in the Superseding Indictment to permit the defendants to invoke double jeopardy in the event of a subsequent prosecution for the same offense. In this case, the Superseding indictment alleges at paragraph 1(b) that: at times relevant to this Indictment.... [t]he activities of SHAC and the SHAC website were chosen and coordinated at various times by the defendants KEVIN KJONAAS, a/k/a Kevin Jonas, a/k/a Steve Shore, a/k/a Jim Fareer, LAUREN GAZZOLA, a/k/a Angela Jackson, a/k/a Danielle Matthews, JACOB CONROY, JOSHUA HARPER, ANDREW STEPANIAN, and DARIUS FULLMER12. Defendant Kjonaas argues that this is insufficient because [t]he indictment does not state whether the persons who chose and coordinated the specified information for publication on the SHAC In addition, the Superseding Indictment also chronicles the use of what SHAC referred to as e-mail and telephone blitzes which were designed to harass and annoy various individuals at HLS and companies that HLS did business with in furtherance of the defendants campaign to shut down HLS. While John McGee is not alleged to have coordinated the activities of SHAC, he is alleged at paragraph 23 of the Superseding Indictment to have slashed the tire of an HLS employees car in furtherance of the conspiracy. - 17 12 11
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website composed the information, or whether they republished it for informational purposes, to expand the marketplace of ideas in cyberspace, rather than as an expression of agreement without reservation as to the viewpoint expressed in the piece. In
essence, defendants want more than is required under the law. Defendants seem to be requiring that the Government lay bare every fact to support every inference that could exist in its prosecution. In this defendants go too far. The Superseding
Indictment places the defendants on notice and permits them to prepare a defense. That is what is required. The Government
will be put to its factual test at trial where many of
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defendants arguments must await.13 With regard to the interstate stalking counts, defendant Kjonaas, again, asks this Court to rule that an indictment must set forth all of the proof for its allegations i.e., proof of the agreement; proof that he and the other defendants conspired to use a facility in interstate commerce; proof that the individuals stalked were actually located in another state. Defendant SHAC, similarly, claims that there can be no evidence adduced that SHAC conspired to commit interstate stalking or had the requisite intent. SHAC Mem. at 56-57.
Contrary to defendants suggestion, there is no requirement that an indictment set forth all of the evidence that supports the allegations. The evidence to support the allegations in the
In this regard, the defendants have listed, in chart format, various of the allegations and overt acts that appear in the Superseding Indictment. Defendants have also characterized and in instances mischaracterized these as criminal acts or not. For instance, the chart which appears at Kjonaas Mem. at 13 lists the fact that on or about July 11, 2001, over 2 million e-mails were sent through a business computer which caused damage to the companys operations. Defendants then in a footnote liken that intentional occurrence to Vice President Cheneys mistaken misidentification of a website during a nationally televised debate. Clearly, there is no similarity between a mistaken misidentification which causes a large number of people to go to a website and the intentional direction of a large number of people using automatic dialers and sophisticated software to invade a website for the purpose of causing it to overload. One is an innocent mistake and the other an intentionally criminal act. Defendants seek to have this Court decide which it was in this case without the benefit of a trial. However, that is a question for a jury to decide after all the facts have been placed before it. - 19 -
13
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Superseding Indictment has been provided to the defendants through discovery and will be presented at trial where the Government will be subject to its burden of proof beyond a reasonable doubt. That the Superseding Indictment does not
satisfy that burden is to be expected given that it is not the purpose of a charging document to do so. Furthermore,
notwithstanding SHACs contention, it is axiomatic that because we are at a pre-trial stage no evidence has been adduced. is the purpose of a trial. That
It is not the basis for dismissing a
legally sufficient superseding indictment. Defendant Kjonaass also incorrectly suggests to this Court that the Interstate Stalking statute is not applicable in this case because it should only apply in domestic violence cases. Kjonaas Mem. at 60-61.14 Contrary to Kjonaass suggestion,
however, the Interstate Stalking statute is not limited to incidents of domestic stalking. See Comment, Cyberstalking:
Can Communication Via The Internet Constitute A Credible Threat, And Should An Internet Service Provider Be Liable If It Does?, 17 Santa Clara Computer & High Tech. L. J. 115, 136 (Dec. 2000) (available on Westlaw at 17 SCCHITLJ 15)(explaining that
Not surprisingly, defendant Kjonaas cites no legal authority for this proposition. The Justice Department has estimated that over 1 million women and over 370,000 men are currently stalked each year. 145 Cong. Rec. H11910 (daily ed. Nov. 10, 1999). Moreover, they estimate that one out of every 12 women and one out of ever 45 men has been stalked at some point in their lives. Id. - 20 -
14
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cyberstalking does not just involve a man stalking a woman in a state of obsession and providing examples of cyberstalking). Section 2261A makes it unlawful for any person to use a facility of interstate commerce for the purpose of placing a person in another State, a member of that persons family, or that persons spouse or intimate partner in reasonable fear of death or serious bodily injury. 18 U.S.C. 2261A. Hence, if
any individual conspires to, or aids or abets, interstate stalking, it is a violation of the statute. Compare Bowker, 372
F.3d 365, 389 (6th Cir. 2004) (finding that evidence of defendants threats, including I know all of your neighbors . . . . I know the names of all your relatives and where they live, were sufficient to satisfy cyberstalking count under 18 U.S.C. 2261A) with Superseding Indictment 48 (SHAC website posting stating: We have been monitoring the protection and home for quite some time now, FT we were well aware of the security patrols at your home . . . . Did you think that armed guards or the installation of motion sensors, cameras, lights, and steel grating around your basement windows would somehow make the animal liberation movement go away?); and 64 (SHAC website posting warning C. Corp. employees, We know where you are, we know what you look like we know where you socialize and best of all we know where you live). Indeed, in the Committee Report
relating to the 1999 amendments to the stalking statute, it
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states that H.R. 1869, which was ultimately codified at 18 U.S.C. 2261A, would be the first amendment to the federal stalking statute since its enactment in 1996 and would help Federal prosecutors respond to predatory stalking behavior that is presently beyond their reach, such as cyberstalking and stalking using the mail and telephone. H.R. Rep. No. 106-455 (1999).
Defendant Kjonaass attempt to restrict 2261A to domestic violence, therefore, has no basis. Defendant McGee also argues that the allegations set forth in the Indictment are facially insufficient as to him, and simply do not set forth a cause of action under 18 U.S.C. 43. Mem. at 3. In this the defendant is incorrect. McGee
The Superseding
Indictment alleges that Defendant McGee was affiliated with SHAC. Superseding Indictment at 1i. The Superseding Indictment also
alleges that SHAC was formed to interrupt the business of HLS and ultimately to force it to cease operations altogether due to its use of animals for research and testing. Indictment at 1b. Superseding
The Superseding Indictment also alleges that
the SHAC campaign encouraged direct action including vandalizing cars. Superseding Indictment at 6. Finally,
defendant McGee was alleged in the Superseding Indictment to have engaged in such direct action. Superseding Indictment at 23. The Superseding Indictment also sets forth the fact that acts of vandalism occurring at any time were used as examples to other
- 22 -
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targeted individuals in order to intimidate and harass other victims in order to place those other individuals in reasonable fear of serious bodily injury and death. Superseding Indictment at 11. Thus, the Superseding Indictment clearly puts defendant
McGee on notice of what it is that he is being charged with having done. As a co-conspirator, there is no requirement that the Government allege that any particular defendant did all of the acts that comprise the underlying crime for which they have conspired with others to commit. See United States v. Riccobene, 709 F.2d 214, 225 (3d Cir. 1983); see also United States v. Addanizio, 449 F.2d 100, 102 (3d Cir. 1971) (Once the existence of a conspiracy has been established, only slight evidence is necessary to support a jury verdict that an individual was a member of he conspiracy). The Supreme Court in Blumenthal v.
United States, 332 U.S. 539, 556-57, 68 S.Ct. 248, 256, 93 L.Ed. 154 (1947) held: For it is often true, especially in broad schemes calling for aid of many persons, that after discovery of enough to show clearly the essence of the scheme and the identity of a number participating, the identity and the fact of participation of others remain undiscovered and undiscoverable. Secrecy and concealment are essential features of successful conspiracy. The more complete they are achieved, the more successful the crime. Hence the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it without requiring evidence of knowledge of all its details or of the participation of others. Otherwise the difficulties, - 23 -
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not only of discovery, but of certainty in proof and of correlating proof which pleading would become insuperable, and conspirators would go free by their very ingenuity. Moreover, the Government is not limited at trial to the overt acts alleged in the Superseding Indictment. v. Adamo, 534 F.2d 31, 37 (3d Cir. 1976). United States
The purpose of the
Superseding Indictment, is to provide the defendant with the elements of the offense in sufficient detail so that he is placed on notice of the charges against him and guard him against any possibility of double jeopardy. Once the defendant is so
situated the Superseding Indictment is impervious to attack on a motion to dismiss. Hamiling v. United States, 418 U.S. 87, 117
(1974), United States v. Donsky, 825 F.2d 746, 749 n.5 (3d Cir. 1987); United States v. Eichman, 756 F. Supp. at 146. As set
forth herein, it is sufficient for an Indictment to track the statutory language, "so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution." United States v. Shirk, 981 F,2d 1382, 1389 (3d Cir. 1992), quoting, United States v. Olatunji, 872 F.2d 1161, 1166 (3d Cir. 1989); United States v. Eufrasio, 935 F.2d 553, 575 (3d Cir. 1991), cert. denied, 112 S.Ct. 340 (1991); see also United States v. Scanzello, 832 F.2d 18, 22 (3d Cir. 1987)(conspiracy indictment sufficient if elements of offense are alleged). this regard the Superseding Indictment does just that. Accordingly, the defendants motion to dismiss should be denied. - 24 In
Filed 02/18/05 Page 31 of 129
3.
The Use By SHAC of Websites.
Defendant Kjonaas sets forth a selective recitation of the workings of the internet and cyberspace in general that does not apply to the facts in this case. Nevertheless, the Government
agrees that it is important to note what SHAC was doing with its websites. Defendant Kjonaas relies for his explanation of
cyberspace on Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). While Reno provides a basic understanding of the
operation of certain aspects of the internet, it did not deal with websites such as the one operated by SHAC. Rather it dealt
with electronic mail (e-mail) automatic mailing list services (mail exploders, sometimes referred to as listservers), newsgroups, chatrooms, and the World Wide Web. U.S. at 851. Reno, 521
Unlike websites that do not contain an interactive
component - websites like the SHAC Website -- the focus of the Reno discussion was on interactive websites and other aspects of the internet that permit random users to post information and messages as well as retrieve specific information. A website
such as the SHAC Website, while it is available on the World Wide Web when one types in the web address, is not generally interactive. Thus, one cannot go to the SHAC website, or the
website of many a company and alter the content of their websites.15 On the other hand, chat rooms, e-mail listservers,
Certain corporate websites permit customers to log in and purchase items or find information specific to them and alter personal information. Generally speaking, however, an individual cannot go to the IBM website, for instance, and begin making - 25 -
15
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and newsgroups, such as those services discussed in Reno, all permit internet users to post material on the World Wide Web in some cases anonymously. Congress has clearly delineated a difference between individuals and entities who provide interactive aspects of the internet and those who provide content. (f)(2),(3). See 47 U.S.C. 230
In addition to stating that it is the policy of the
United States to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer, Congress differentiated between interactive computer services that provide a forum for others to speak and information content providers who are responsible in whole or part for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C. 230 (f)(3). Interactive computer services
are entities such as AOL that provide a forum for people and entities to publish and exchange ideas through services and chatrooms. Since companies like AOL provide a forum for the
thoughts of others, often without the ability to review the information that was posted, Congress did not want them held liable for the works of others. See Zeran v. America Online,
Inc., 129 F.3d 327, 330-31 (4th Cir. 1997)(Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on
changes to the format or content of the information posted on that site. - 26 -
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companies that serve as intermediaries for other parties potentially injurious messages). By contrast, the SHAC websites
were internet content providers in that they did not provide interactive abilities. Rather, they were vehicles to dispense
SHAC propaganda and were not, as defendants would suggest, vehicles which fostered the marketplace of ideas.16 Thus, the
party responsible for posting the information can always be held responsible for the content of its message. Zeran, 129 F.3d at
330 (original culpable party who posts defamatory messages cannot escape accountability). Defendants argument that no one can be held liable for information published on the website premised on the Reno Courts discussion of the internet and its operation is simply incorrect. Thus, when defendant Kjonaas argues [t]he Reno Court addresses the feasability indeed the futility of trying to hold those using the Internet accountable if persons outside their intended audience should seek access to information the website, Kjonaas Mem. at 22, the argument simply distorts reality17. It is true
that in many instances the writer of a posting in a chatroom or Certainly there was no way for proponents of animal research in furtherance of perfecting new drugs and treatments to save lives to have their voices heard on the SHAC website in any manner other than as perverted by the defendants. So, too, defendant Kjonaas argues that those who committed acts of vandalism may have acted for wholly independent reasons following from wholly separate information disseminated by other sources without connection to SHAC, the SCHAC Website, or individual defendants. Kjonaas Mem. at 22. Those matters are clearly issues to be decided by the trier of fact at the completion of trial in this matter. - 27 17 16
Filed 02/18/05 Page 34 of 129
on an interactive website is not capable of being identified and therefore cannot be held responsible for the acts. That,
however, is a matter of identification and not a legal impediment to liability. Here, the websites were SHAC sponsored and
therefore the corporate entity and those responsible for choosing and coordinating and carrying out the activities of the corporate entity the defendants in this case can be held responsible with sufficient proof of their complicity. Indeed, commentators have written on the problems posed by the ability of users of the internet to threaten and incite others to commit acts of violence in ways that did not exist prior to the World Wide Web. See e.g., Hammack, The Internet
Loophole: Why Threatening Speech On-Line Requires A Modification Of the Courts Approach to the True Threat and Incitement, 36 Colum. J.L. & Soc. Probs., 65, 67 (2002)([t]he unique characteristics of the Internet blur the distinction between threats and incitement by allowing speakers to threaten by incitement that is, by creating a fear by increasing the likelihood of ensuing violence without actually threatening to carry out the violence by themselves); Brener, True Threats More Appropriate Standard for Analyzing First Amendment Protection and Free Speech When Violence is Perpetrate Over the Internet, 78 N.D. L. Rev. 753 (2002)([t]o allow violent threats to go unregulated over such a vast means of communication would compromise the integrity of the First Amendment). Thus, while defendant Kjonaas argues that [t]he Reno Court - 28 -
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identified the futility of attempting to attribute to any individual user (as opposed to any given computer) the publication of a particular message through electronic means, Kjonaas Mem. at 23, the Court was engaging not in a discussion of identifying publishers of information, but rather, whether the age or identity of someone accessing the information can be properly determined. In short, defendant Kjonaas has attempted At the trial in this matter,
to create issues where none exist.
the Government will be required to prove beyond a reasonable doubt the activities of each defendant as they relate to the charges in this case. Whether or not it can meet its burden Dismissal at this juncture would
awaits a jury determination.
usurp the jurys role in this process. 4. References to Congressional Testimony on 18 U.S.C. 43
Defendant Kjonaas, abandoning the law, cites to the Department of Justices lobbying efforts to create stronger laws in order to argue that no laws relate to him18. However, various
individuals testimony before congressional bodies in order to address perceived deficiencies in the law lacks the force of statutes and interpretive decisions of courts the laws upon which criminal jurisprudence is based. Defendants true argument is that the Government should be
This argument is especially interesting in light of defendants earlier arguments to this Court that there was some grand conspiracy on the part of various arms of the Government to prosecute him. - 29 -
18
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estopped from bringing the instant case because two government officials have taken a view of the statute that could be argued to be at odds with the Superseding Indictment in this case19. Defendants argument is simply incorrect. Even when Congress
which is charged with enacting the legislation makes policy statements about existing legislation, those subsequent statements do not carry the force of law. See Pierce v.
Underwood, 487 552, 566 (1981) ([I]t is the function of the courts and not the Legislature, much less a Committee of one House of the Legislature, to say what an enacted statute means.). In the instant case, these statements by Department of Justice employees have even less force of law. The statements
were not made in support of legislation passed by Congress. Rather, they were statements made at Congressional hearings several years after the statute was enacted. Thus, they have no
legal efficacy whatsoever, and only illustrate the desperateness of defendants situation. 5. Time Frame of The Conspiracy
Defendant Kjonaas argues that certain postings on the SHAC website alleged in the Superseding Indictment occurred outside the time frame of the conspiracy and, thus, fail in and of
Defendant is not, and indeed cannot argue, a reliance upon public authority defense. See United States v. Cross, 113 F. Supp.2d 1253, 1264-65 (S.D. Ind. 2000). - 30 -
19
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themselves to state a cause of action. 38.
See Kjonaas mem at . 37-
As with other postings which occurred before the time frame
for the conspiracy in the Superseding Indictment, they remained on the website after the start of the conspiracy and were therefore adopted by the conspirators. In addition, they had an
impact on the victims who became aware of the activities of SHAC through the postings that remained on the website when they themselves became SHAC-targets. Thus they are part of the
continuing activities of the defendants that form the basis of the conspiracies charges in this case.20 The case law is clear that when the Government charges that an offense occurred generally "on or about" a date, " . . . the defendant is on notice that the charge is not limited to the specific date or dates set out in the indictment." United States
This argument is more often manifested in the reverse situation from that which is presented here. Generally defendants argue after a trial that the Government introduced evidence outside the time frame of an indictment that was not alleged. They argue, therefore, that there was a variance from the Indictment that has prejudiced them. Courts generally dismiss such claims where the defendants have had notice and were not prejudiced by the time differential. See, e.g. United States v. Rashid, 274 F.3d 407, 414-15 (6th Cir. 2001)(when evidence is presented of activities that occurred outside of the conspiracy dates charged in the indictment (as opposed to the statute of limitations dates), that did not constitute a fatal variance); United States v. Edwards, 366 F.2d 853, 871-72 (2d Cir. 1966)(evidence that meeting in furtherance of conspiracy took place almost a month prior than alleged not a fatal variance); United States v. Johnson, 165 F.2d 42 (3d Cir. 1947). Here, the defendants have been appraised of the facts as alleged in the Superseding Indictment. There is no variance and there is no prejudice. - 31 -
20
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v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989)(citing United States v. Creamer, 721 F.2d 342 (11th Cir. 1983)), cert. denied, 493 U.S. 1080 (1990). Accordingly, "[p]roof of a date reasonably
near the specified date is sufficient." Id. at 1403 (citing, United States v. Champion, 813 F.2d 1154 (11th Cir. 1987). Reed, the Circuit Court applied this principle to uphold a conviction where the Indictment charged that the offense occurred "on or about the 6th day of August" but the proof at trial established that the event occurred in July. The Court wrote: In
The Indictment set forth the material allegations of the offenses charged . . . Thus, the substance of the testimony . . . could not have substantially prejudiced Appellant through surprise. Reed was apprised on the first day of trial the government intended to prove a date that occurred approximately one month earlier than the dates alleged in the Indictment. Reed, 887 F.2d at 1403. The same analysis should be applied in this case. The
Superseding Indictment outlined the time frame of the conspiracy in general, non-specific terms and, importantly, specifically notified the defendants that the object of the conspiracy was to physically disrupt the operations of HLS and drive it out of business by (a) directly disrupting the business of HLS or (b) disrupting the business of companies that either provided services to, or purchase services from HLS, thereby forcing those businesses to cease doing business with HLS and make it impossible for HLS to conduct its business. - 32 Superseding
Filed 02/18/05 Page 39 of 129
Indictment at 3.
Moreover, the Manner and Means paragraphs of
the Superseding Indictment clearly delineate for the defendants the conduct they are alleged to have engaged in, including, the fact that acts perpetrated on HLS and its employees, which were reported on the SHAC Website, would be used as examples in order to intimidate, harass and threaten other individuals and companies and place individuals in a reasonable fear of serious bodily injury and/or death. Superseding Indictment at 1121.
The inclusion of these actions on the part of the defendants puts them on notice of the allegations so that they can defend against them. As such, it is perplexing to see how the defendants are
prejudiced by the notification by the Government of what they are alleged to have done and that the Government intends to introduce as evidence in support of the conspiracy charges. Finally, the evidence in question occurred in very close proximity to the approximate time period specified in the Superseding Indictment. This is certainly close enough to The
satisfy the "reasonably near" standard applied in Reed.
principle applied by the Reed Court is also the controlling law in the Third Circuit. In United States v. Somers, the Third
Circuit addressed the question of whether there was a variance in the proofs from the indictment in a case charging extortion
A similar Manner and Means paragraph alleges activities against companies doing business with HLS and their employees. Superseding Indictment at 17. - 33 -
21
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"between on or about" certain dates. 496 F.2d 723 (3d. Cir. 1974), abrogated on other grounds, United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989). In Somers, as in Reed, the government
presented evidence indicating that the charged crime occurred some time before the delineated dates. Indeed, in Somers, the
Court permitted, and the Third Circuit upheld the Government's offer of proof that occurred over one year prior to the date on or about which the conspiracy was alleged. The Court rejected
the defendant's variance argument reasoning that the dates in the indictment were sufficiently vague to permit the evidence. Court wrote: [where] the grand jury identifies specific dates...it is reasonable to assume that the grand jury was indicting the defendant for acts occurring on the specific dates charged. Where, however, the grand jury speaks in more general terms, this assumption fails. By the use of the qualifying phrase "on or about", the grand jury indicates its unwillingness to pinpoint the date of the offense charged. We will not particularize by a per se rule what the grand jury leaves vague. Id. at 745. Again, the same principle should be applied in this case. Here, the grand jury did not particularize the specific date this conspiracy began but, rather, left the Superseding Indictment generalized to an approximate date of at least as early as October, 2001." Superseding Indictment at 2. Furthermore, as The
indicated, the charging language of the Superseding Indictment specifically notified the defendants that the conspiracy involved - 34 -
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the very activity for which the Government seeks to introduce evidence. In conclusion, the defendants were charged by the grand jury with participating in a conspiracy that contemplated the physical disruption of HLS by ultimately forcing it to cease operations through various means. The defendants are aware of the fact from
the face of the Superseding Indictment, the discovery produced, and through communications between counsel. The events in
question are "reasonably near" the generalized time period of the Indictment and, as such, the United States requests that the Court deny defendant's motion.
II.
VENUE IS PROPERLY LAID IN THE DISTRICT OF NEW JERSEY. Defendant SHAC asserts that the action as against it is
improperly laid in this district. venue would be proper.
Defendant does not state where
Indeed, since defendant argues that
SHAC-USA does not really exist in the temporal world, SHAC Mem. at 10, one suspects it is defendants position that there is no venue where the corporate defendant could be prosecuted.22 As
will be discussed more fully herein, venue is proper in this district. Accordingly, defendant's motion should be denied.
The Websters II New Collegiate Dictionary defines temporal as: 1. Relating to, concerned with, or limited by time. 2. Relating to or concerned with worldly affairs. In essence, the argument of defendant is that SHAC is not of this world. This defies credulity. - 35 -
22
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Section 3237 of Title 18, states, in pertinent part: (a) Except as otherwise provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed. Any offense involving the use of the mails, transportation in interstate of foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves. Since the offenses in this case utilized computers which are connected to the internet through the interstate lines of communication, See Reno v. ACLU, 521 U.S. at 850 (internet is unique and wholly new medium of worldwide communication), it is a continuing offense and therefore may be prosecuted in any district "from, through or into which such commerce" moved.23 Indeed, as the Court stated in United States v. Goldberg, 830 F.2d 459, 566 (3d Cir. 1987): [w]here the acts constituting the crime and the nature of the crime charged implicate more than one location, the constitution does not command a single exclusive venue. The constitution requires only that the venue chosen be determined from the nature of the crime charged as well as from the location of the acts constituting it, and that it not be contrary to an explicit policy underlying venue law. Quoting, United States v. Reed, 773 F.2d 477, 480 (2d Cir. 1985). Here, the crimes touched a number of jurisdictions, including New
Moreover, many of the acts in this case, such as the stalking allegations, began in New Jersey and were completed in other districts. - 36 -
23
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Jersey.
Therefore, given the continuing nature of the crimes
charged as well as the New Jersey nexus, venue in this district is proper. Count one of the Indictment charges the corporate defendant and other with conspiracy to violate Title 18 U.S.C. 43. Count
Two charges it with conspiracy to engage in interstate stalking in contrary to 18 U.S.C. 2261A, in violation of 18 U.S.C. 371. Counts Three through Five charge the corporate defendant
and others with stalking and in particular aiding and abetting in the stalking of three separate individuals. Finally, Count six
charges the corporate defendant and others with using the lines of interstate telecommunications for purposes of harassment contrary to 47 U.S.C. 223 (a)(1)(C)2261A, in violation of 18 U.S.C. 371. As to each of these counts, the Superseding Indictment charges that the corporate defendants principal place of business was located in New Jersey. Moreover, the Superseding
Indictment alleges in each count that the activities alleged occurred in at Somerset, in the District of New Jersey, and elsewhere. That is where the then-president of the corporate
defendant resided, where four other of the defendants resided and where the principal place of business of the corporate defendant was located. In addition, as to Count One, the district of New Jersey is where certain of the overt acts in furtherance of the Superseding Indictment were alleged to have occurred. - 37 See Superseding
Filed 02/18/05 Page 44 of 129
Indictment at 21 and 22 (attacks at HJs New Jersey home); 29 (posters referring to HLS employee s deluded and deranged posted in Princeton, New Jersey area), 58, 59 (actions against W. Corp., a company headquartered in New Jersey). As to Count Two, the same is true. The company and certain
of the co-conspirators resided in New Jersey and carried out the conspiracy there. Information was posted on the SHAC website Counts, Three,
relating to the individuals that were stalked.
Four and Five are similar in that while the individuals who were stalked resided in states other than New Jersey, the aiding and abetting of the stalking involved acts in New Jersey. Finally
the conspiracy charged in Count Six of the Superseding Indictment involved planning and web postings on the SHAC Website which originated in New Jersey and then involved other districts and places around the world. In sum, in each Count charged in the Superseding Indictment, the scheme was anchored in New Jersey, which is where the thenpresident of the corporate defendant directed the corporations activities and where the corporation had its principal place of business. Not surprisingly, defendants do not posit any place Indeed, under defendants
other than New Jersey for venue.
arguments where the corporate defendant exists nowhere, venue simply does not exist as to it. Such an argument fails in light
of the allegations in the Superseding Indictment.
- 38 -
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III. UNDER 18 U.S.C. 43(a) IT IS A FEDERAL OFFENSE TO CONSPIRE TO COMMIT ANIMAL ENTERPRISE TERRORISM Defendants argue that Count One of the Superseding Indictment, which charges animal enterprise terrorism under 18 U.S.C. 43(a), fails to set forth a charge under which the defendants may be held criminally liable. 29. E.g., Kjonaas Mem. at
As discussed below, defendants argument is based upon a Accordingly,
fundamentally flawed and untenable reading of 43. this Court should reject it.
In interpreting a statute, a Court must begin by looking at the plain and unambiguous meaning of the language in the statute. E.g., Smirko v. Ashcroft, 387 F.3d 279, 288 (3d Cir. 2004). In
applying this canon of statutory construction, however, the Court does not look at the language in isolation of the rest of the statute. (1991). See Gozlon-Peretz v. United States, 498 U.S. 395, 407 As the Court explained in Gozlon-Peretz, [i]n
determining the meaning of the statute, [the Court] must look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy. 407 (internal quotation marks and citation omitted). Reading a statutes plain language in the context of its overall design and objective avoids an absurd interpretation based upon a literal reading of the language. To that end, [i]t Id. at
is the obligation of the court to construe a statute to avoid absurd results, if alternative interpretations are available and - 39 -
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consistent with the legislative purpose.
United States v.
Scheider, 14 F.3d 876, 880 (3d Cir. 1994); accord United States v. Combs, 379 F.3d 564 (9th Cir. 2004) (a court is not required to interpret a statute in a formalistic manner when such an interpretation would produce a result contrary to the statutes purpose or lead to unreasonable results). Count One of the Superseding Indictment charges all seven defendants with violating 18 U.S.C. 43(a). Section 43(a)
codifies the federal offense of animal enterprise terrorism. Specifically, 43(a) states: Whoever (1) travels in interstate or foreign commerce, or uses
or causes to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption to the functioning of an animal enterprise; and (2) intentionally damages or causes the loss of any
property (including animal or records) used by the animal enterprise, or conspires to do so, shall be punished as provided in subsection (b). 18 U.S.C. 43. A plain and common sense reading of 43(a) evidences that this criminal statute creates one substantive offense animal enterprise terrorism with two elements subsections (a)(1) and (a)(2). Put differently, subsections (a)(1) and (a)(2) are two
- 40 -
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elements of a single substantive offense the offense of animal enterprise terrorism. In addition, 43(a) creates liability
for conspiring to commit that substantive offense i.e., for conspiring to do (a)(1) and (a)(2). Consistent with 43(a), Count One of the Superseding Indictment properly charges a federal offense under 43(a). Specifically, Count One alleges that all seven defendants did knowingly and willfully combine, conspire and agree with one another and others to use a facility in interstate and foreign commerce for the purpose fo causing physical disruption to the functioning of HLS, and animal enterprise, and intentionally damage and cause the loss of property used by HLS, in an amount exceeding $10,000. Superseding Indictment 2. Count One, a
therefore, charges conduct that 43 plainly criminalizes: conspiracy to commit animal enterprise terrorism.
Nevertheless, defendants are asking this Court to ignore a plain and common sense reading of 43(a) in favor of a tortured construction. Defendant Kjonaas, for example, claims that
[u]nder the (a)(1) section, a defendant must be charged with a substantive act and [o]nly the (a)(2) section includes allowance for conspiratorial liability. Kjonaas Mem. at 29-30.
He, therefore, argues that the indictment must be dismissed because it charges a conspiracy under subsection (a)(1). Defendant Kjonaass construction of 43(a), however, is at
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odds with a plain reading of 43(a).
Kjonaass interpretation
would essentially create two substantive crimes one under 43(a)(1) and one under (a)(2) as well as the inchoate crime of conspiracy under (a)(2). Under his interpretation, 43
would make it a federal offense to: (1) travel in interstate commerce, or uses or causes to be used the mail or any facility in interstate commerce for the purpose of causing physical disruption to the functioning of an animal enterprise; or (2) intentionally damage or cause the loss of any property (including animal or records) used by the animal enterprise; or (3) conspire to intentionally damage or cause the loss of any property (including animal or records) used by the animal enterprise. This construction is at odds with 43(a) as it is plainly written in the conjunctive (using and), and not the disjunctive (which would require an or). Defendants SHAC and McGee, likewise, argue that the Government is implying a 43(a)(2) conspiracy provision into 43(a)(1). See SHAC Mem. at 19; see also McGee Mem. at 5 (It
must be noted that while 18 U.S.C. 43(b)(2) allows for conspiratorial liability, 18 U.S.C. 43(b)(1) does not.). Like
Kjonaass, their argument is based upon the premise that 43 creates two distinct crimes one under subsection (a)(1) and one under subsection (a)(2). See, e.g., SHAC Mem. at 18 (SHAC is indicted under 18 43(a)(1) which does not have a conspiracy
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count).
Clearly that is not the case.
As stated above, 43(a)
creates one substantive crime with two elements (a)(1) and (a)(2).24 Section 43(a) then makes it a crime to conspire to
commit that offense i.e., to commit (a)(1) and (a)(2).25 In addition to ignoring a plain reading of 43(a), defendants tortured reading of the statute would require this Court to interpret 43(a) in a way that produces absurd results that Congress could not have intended. Under defendants reading
of the statute, this Court would have to conclude that Congress intended to create a federal offense with elements that the defendants actually committed the conduct in 43(a)(1), but only conspired to do the conduct in 43(a)(2). See, e.g., Kjonaas
Mem. at 29-30 (Only the (a)(2) section includes allowance for conspiratorial liability.); McGee Mem. at 4-5 (arguing that only subsection (a)(2) allows for conspiratorial liability). differently, the defendants would be co-conspirators to an element of a crime rather than co-conspirators to a crime. Put
In its memorandum, defendant SHAC conveniently ignores the and when quoting 43(a). See SHAC Mem. at 18. Defendant Kjonaas asserts as a rule that [w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion and exclusion. Kjonaas Mem. at 30 (quoting Gozlon-Pertz v. United States, 498 U.S. 395, 404 (1991)). Presumably, defendant Kjonaas is suggesting that Congress should have included the language or conspires to do so in 43(a)(1). Given the plain reading of the statute, including the language or conspires to do so in (a)(1) would have been redundant. - 43 25
24
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There is no federal criminal statute that criminalizes a conspiracy to commit an element of a substantive offense, instead of the actual substantive offense.26 The entire concept of
conspiracy liability is premised upon an agreement to commit a crime not an element of a crime. See 18 U.S.C. 371 (If two
or more persons conspire either to commit any offense . . . .) (emphasis added); Pinkerton v. United States, 328 U.S. 640, 643 (1946) (A conspiracy is a partnership in crime.) (emphasis added). Congress clearly could not have intended such an absurd
and dramatically different criminal offense whereby defendants are charged as co-conspirators only to an element of an offense. To the contrary, Congress purposely placed the animal enterprise terrorism offense in Title 18 to ensure that its provisions are interpreted consistently with comparable provisions in other criminal statutes. H.R. Rep. 102-498, at 5 (1992), reprinted in
1992 U.S.C.C.A.N. 816, 819. In such a case, where the literal meaning of a statute would lead to a patently absurd result that no rational legislature could have intended, a Court should adopt an interpretation that accurately reflects the legislatures intent and the statutes purpose. Fogleman v. Mercy Hospital, 283 F.3d
Arguably, the federal RICO statutes requirement that there be at least two predicate acts, 18 U.S.C. 1961, can result in an element of the RICO offense being a conspiracy. However, such an element would still require a conspiracy to commit an offense i.e., the predicate act. - 44 -
26
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561, 569 (3d Cir. 2002).
As the Third Circuit recognized in
Fogleman, [f]ollowing the letter, rather than the spirit of the law in such cases would go against the courts role of construing statutes to effectuate the legislatures intent.27 Defendants untenable reading of the 43(a) would indeed contradict the legislatures intent and the statutory purpose of 43(a). While there is not extensive legislative history for 18
U.S.C. 43, the history that does exist refutes defendants theory. In the House Report on the bill that became 43 after
some amendments, the Judiciary Committee reporting on the bill explained that the bill would create a federal offense for disrupting an enterprise that uses animals for food or fiber production, agriculture, research or testing. H.R. Rep. 102-
498, at 2 (1992), reprinted in 1992 U.S.C.C.A.N. 816, 816
It is also not reasonable that Congress would have intended the Government to charge a conspiracy to violate 43(a) under 18 U.S.C. 371. First, requiring the Government to charge a conspiracy under 371 would render the phrase or conspires to do so in 43(a) completely superfluous; this Court, however, should be reluctant to adopt a construction [of a provision in a statute that] mak[es] another statutory provision superfluous. Hohn v. United States, 524 U.S. 236, 249 (1998). Second, charging 371 would result in the Government charging that the defendants (1) conspired to travel in interstate or foreign commerce, or use or cause to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption to the functioning of an animal enterprise and (2) conspired to conspire to intentionally damage or cause the loss of any property (including animal or records) used by the animal enterprise. This Court should reject this unreasonable construction of 43(a). - 45 -
27
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(emphasis added).
Then, to explain why the bill was amended to [t]he
add conspiracy liability, the Judiciary Committee stated: bill reported by the Judiciary Committee criminalizes
conspiracies to disrupt facilities, as well as the disruptions themselves. Id. at 4, reprinted in 1992 U.S.C.C.A.N. 816, 818 Hence, contrary to defendants theory, it is
(emphasis added).28
clear that the provision or conspires to do so in 43(a) was intended to criminalize a conspiracy to disrupt an animal enterprise (i.e., 43(a)(1)) and damage or cause the loss of any property (i.e., 43(a)(2)). Put differently, Congress intended
to criminalize a conspiracy to commit the crime set forth in 43, not just a conspiracy to violate an element of that crime. In sum, defendants tortured reading of 43(a) would yield an absurd result, it would frustrate the purpose of the statute, and would contravene the legislatures intent. Accordingly, for
all these reasons, this Court should reject defendants argument that Count One of the Superseding Indictment does not properly charge a conspiracy to commit animal enterprise terrorism.29
After an amendment, the disruption provision in S43(a) was codified in 43(a)(1) (travels in interstate or foreign commerce, or use or cause to be used the mail or any facility in interstate or foreign commerce for the purpose of causing physical disruption . . .). Given the Committees explanation above, it further evidences that the provision or conspires to do so was meant to apply to both (a)(1) and (a)(2), and not simply (a)(2). It is not clear whether this is an alternative argument, but defendant Kjonaas also claims that Count One should - 46 29
28
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IV.
THE CORPORATE DEFENDANT CAN PROPERLY BE CHARGED WITH CONSPIRACY IN THIS CASE.
SHAC, the corporate defendant in this case, posits that it cannot be charged with conspiracy. For the reasons set forth
below, this Court should reject this argument. A conspiracy is an agreement between two or more individuals or entities to commit a criminal act. A corporation, while not
in reality a person, is regarded by the law as a separate legal entity that is separate and apart from its stockholders. United States v. Sain, 141 F.3d 463, 474 (3d Cir. 1998) (quoting William M. Fletcher, Fletcher Cyclopedia of the Law of Private Corporations 5 at 441 (Permanent ed. 1990)). It has a real existence with rights and liabilities as a separate legal entity. Id. Thus, a corporation is capable of entering into a
conspiracy. While there must be two or more people involved in a conspiracy, [i]t is well-established that one conspirator need not know the identities of all of his co-conspirators, nor be aware of all the details of the conspiracy in order to be found to have agreed to participate in it. United States v. See, Blumenthal v.
Riccobone, 709 F.2d 214, 225 (3d Cir. 1983).
be dismissed because 43 does not criminalize a conspiracy which involves the attempt to cause damage to an animal enterprise. Kjonaas Mem. at 31. The Superseding Indictment, however, charges a conspiracy to violate 43. It is does not charge an attempt to violate 43, nor does it charge a conspiracy to attempt to commit 43 (assuming for purposes of defendant Kjonaass argument that it is even possible to have a conspiracy to attempt). - 47 -
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United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Simmons, 679 F.2d 1042, 1050 (3d Cir. 1982); United States v. Boyd, 595 F.2d 120 (3d Cir. 1978). In this
case, Count One of the Superseding Indictment alleges seven specific individual co-conspirators as well as others unnamed and unknown, in addition to the corporate defendant, SHAC. Count Two
alleges three known individual conspirators in addition to the corporate defendant, SHAC, and Count Six alleges four known individual defendants in addition to the corporate defendant, SHAC. Defendant SHAC relies upon United States v. Stevens, 909 F.2d 431 (11th Cir. 1990) for its argument that a conspiracy charge against the corporation violates its due process rights. In Stevens, the sole stockholder in a company was charged along with the company itself in a conspiracy. named. No other defendant was
The Court held that a sole stockholder who completely
controls a corporation and is the sole actor in performance of corporate activities cannot be guilty of a criminal conspiracy with that corporation. Stevens, 909 F.2d at 431. Thus, Stevens
is wholly inapposite to the case sub judice.
Interestingly,
defendant does not argue that Kjonaas or anyone else named in the Superseding Indictment completely controls the activities of SHAC. Indeed, defendants seem to be arguing just the opposite
that no one knows who does what with respect to the
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corporation.30 The United States agrees that it could not charge only Kjonaas, SHACs then-president and SHAC itself with having engaged in the conspiratorial conduct that is alleged in Counts One, Two and Six of the Superseding Indictment. However, the Rather, it
Government has not charged only those two defendants.
has charged several other individuals and the Superseding Indictment makes it clear that there were other unnamed individuals who agreed to be part of the activities as alleged. Thus, this is not a case as Stevens where there is only one individual - the sole shareholder and actor for a corporation and the corporation for which he acts who are named as coconspirators. Accordingly, defendants motion in this regard
should be denied. Defendant, realizing that its argument, relying as it does on Stevens, a wholly inapposite case, is sheer sophistry, next argues that the other co-conspirators named in the Superseding Indictment are part of a single entity and therefore should be deemed as one, thus leaving them unable as well to be coconspirators. This argument totally turns the law on its head
and should be denied. First, in Stevens, the very case defendant relies upon to
Defendant SHACs argument that all of the defendants were acting as a single entity completely contradicts defendant Kjonaass argument that the Superseding Indictment does not allege who was doing what with respect to SHAC. Kjonaas Mem. at 25-26. - 49 -
30
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make the first prong of its argument, the court rejected the single entity theory stating: Although a conspiracy under 18 U.S.C.A. 371 requires an agreement between two or more persons, we have held that a corporation may be held criminally liable under 371 when conspiring with its officers and employees. In so holding we rejected the single entity theory that all agents of a corporation engaging in corporate conduct for a single collective legal person that is, the corporation and the acts of the agent constitutes the acts of the corporation. [footnotes omitted] Stevens, 909 F.2d at 432. Moreover, every case cited by defendant in support of its argument has rejected the single entity theory. For instance,
defendant cites Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 603 (5th Cir. 1981) in support of his argument that a corporations employees should be viewed as a single entity for deciding whether a conspiracy exists. Like Stevens, however, In Dussouy, the
Dussouy does not support defendants argument.
Court addressed the question of the single entity theory of liability. The Court first looked to Nelson Radio & Supply v.
Motorola, 200 F.2d 911 (5th Cir. 1952), an antitrust case wherein the single entity theory was embraced over a strong dissent. In
opining on the viability of the theory the Dussouy Court wrote: There are, however, strong arguments against the Nelson Radio rule. The original purposes of the rule attributing agents acts to a corporation were to enable corporations to act, permitting the pooling of resources to achieve a social benefit and, in the case of tortious acts, to require a corporation to bear the costs of its business enterprise. But extension of the rule to preclude the possibility of intracorporate conspiracy does not serve either of these goals. See Note, Intracorporate Conspiracies under 42 U.S.C. 1985(c), 92 Harv. L. Rev. 470, 477-78 (1978); see - 50 -
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generally Note, Intracorporate Conspiracies under 42 U.S.C. 1985(c): The Impact of Novatney v. Great American Savings & Loan Association, 13 Ga. L. Rev. 591, 602-03 (1979). Some courts have found this reasoning persuasive when dealing with problems outside the federal antitrust area. For instance, in Novatney v. Great American Savings & Loan Association, 3 Cir. 1978, 584 F.2d 1235 (en banc), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), the Third Circuit, although it did not consider whether the corporation could be party to the conspiracy, held that the officers and directors of a single corporation could be liable for a conspiracy under 42 U.S.C. 1985(c). Similarly, a corporation can be convicted of criminal charges of conspiracy based solely on conspiracy with its own employees. United States v. Consolidated Coal Co., 424 F. Supp. 577 (S.D. Ohio 1976); see Novatney v. Great American Savings & Loan Association, 3 Cir. 1978, 584 F.2d 1235, 1258 (en banc) (dictum), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). In these situations, the actions by the incorporated collection of individuals creates a group danger at which conspiracy liability is aimed, and the view of the corporation as a single legal actor becomes fiction without a purpose. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d at 603. Similarly, United States v. Hartley, 678 F.2d 961 (11th Cir. 1982), cited by defendant, followed Dussouy and a number of other courts in rejecting the single entity theory. Indeed,
defendant cites to no court that has accepted the rather narrow holding of Nelson Radio.31
31
Accordingly, even were all of the
Defendant states at p. 24 of its memorandum of law: [t]herefore, in the civil rights context, the Courts have generally refused to find a conspiracy where members of a corporation were alleged to have conspired among themselves. Defendant cites to Bivens Gardens Office Bldg. V. Barnett Banks, Inc., 140 F.3d 898, 912 (11th Cir. 1998) for this proposition. Unlike Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) which did deal with matters of civil rights but not the single entity theory, the Bivens Gardens case cited by defendant dealt with a civil RICO action. The Court in Bivens Gardens found, not that the conspiracy - 51 -
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defendants charged in the conspiracy counts of the Superseding Indictment employees of SHAC, the defendants argument fails. Moreover, all of the defendants charged in the conspiracy counts of the Superseding Indictment are not direct employees of SHAC. As defendant states, SHAC does no business, sells no SHAC Memo. at 20.
products, and has no office or paid staff.
Defendant further alleges that under the best view of the Governments allegations, there is only one human actor involved with SHAC, Mr. Kjonaas. Id. While the Government agrees that
Mr. Kjonaas was the president of SHAC, it does not follow that all those who acted in furtherance of its objectives were employees or agents that would make them a single entity. Accordingly, defendants motion in this regard should be denied.
V.
THE SUPERSEDING INDICTMENT PROPERLY ALLEGES, AND THE STATUTES CHARGED REQUIRE, AN INTERSTATE COMMERCE NEXUS
Defendant SHAC argues that the Superseding Indictment lacks an interstate commerce nexus. Defendant relies upon United In Lopez, the Supreme
States v. Lopez, 514 U.S. 549 (1995).
Court considered the constitutionality of the Gun-Free School Zones Act, 18 U.S.C. 922(q), which created a federal offense for any individual knowingly to possess a firearm at a place
allegations against the corporation and the individuals were not permissible, but rather, that the plaintiffs did not adduce sufficient evidence at trial. Bivens Gardens, 140 F.3d at 912. Hence, not only is Bivens Gardens not a civil rights, case, it does not support defendants argument. - 52 -
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that the individual knows, or has reasonable cause to believe, is a school zone, 18 U.S.C. 922(q)(1)(A). Pointedly, 922(q)(1) In addressing the
contained no jurisdictional element at all.
constitutionality of that statute, the Court enumerated three categories that Congress could regulate under the Commerce Clause: (1) the channels of interstate commerce; (2) the
instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities which have a substantial relation to interstate commerce . . . i.e. those activities that Lopez, 514 U.S. at
substantially affect interstate commerce. 558-59.
The Lopez Court found 922(q) to be an unconstitutional
exercise of Congresss authority under the Commerce Clause due to the total dearth of an interstate nexus requirement. Specifically, the Court found that the statute contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question has the requisite nexus with interstate commerce. Id. at 561.
Fatal to defendant SHACs reliance on Lopez is its own admission that [t]he AEPA, the Federal Stalking Act and the Telecommunications act share one common jurisdictional factor, proof of an interstate commerce nexus. (SHAC Mem. at p. 25).
Thus, by its own admission, Lopez is inapposite and the Court should deny defendants motion. Indeed, unlike 922(q), 18 U.S.
C. 43 (Whoever travels in interstate or foreign commerce, or
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uses or causes to be used the mail or any facility in interstate commerce....) 2261A (Whoever uses the mail or any facility in interstate commerce....) and 47 U.S.C. 223 (Whoever in interstate or foreign communications) all have express jurisdictional elements that ensure that an adequate interstate nexus is established. What defendant really argues is that the use of the internet is not in or effecting interstate or foreign commerce. For this
argument, defendant relies on Reno v. ACLU, 521 U.S. 844, 844-49 (1999). Reno, however, did not hold that the internet was not an In fact, the interstate Rather,
instrumentality of interstate commerce.
nexus in Reno was as it is in this case the internet.
the Court affirmed a lower court ruling that two provisions of 47 U.S.C. 223 dealing with obscene or indecent messages were inherently vague and hence unconstitutional. Id. at 862.
Thus, the Court in Reno did not find any infirmity with the jurisdictional basis which was the use of the internet. Defendants argument that a communication using the website provides no proof of any interstate activity and that transmission of electronic data over the internet is not within the current Lopez definition of interstate commerce, SHAC Mem. at 28, simply does not comport with legal or factual reality. Many courts have held the internet to be an instrumentality of interstate commerce. E.g., United States v. Hornaday, 392 F.2d
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1306, 1311 (11th Cir. 2004)(The internet is an instrumentality of interstate commerce); United States v. Panfil, 338 F.3d 1299 (11th Cir. 2003)(same); United States v. Runyan, 290 F.3d 223 (5th Cir. 2002)(same); United States v. Carroll, 105 F.3d 740 (1st Cir. 1997)(same); see also United States v. Macewan, 2004 WL 3019316 (E.D.Pa. Dec. 29, 2004)(Numerous courts have held that the modern phenomenon of the internet is thoroughly connected to and part of interstate commerce.). Recently in United States v
Tykarsky, 2004 WL 1813206 (E.D.Pa. July 20, 2004), the Court in dealing with an argument similar to that put forth by the defendant here stated: It is defendants contention that the government should have been required to prove that the Internet communications in question actually traveled across state lines. We are not persuaded. Telephone networks and the Internet are undoubtedly facilities of interstate commerce. Using a computer connected to the Internet equates to the use of a facility in interstate commerce, even though the communications in question may have been intrastate in character. See United States v. Gil, 297 F.3d 92, 99-100 (2d Cir. 2002). United States v. Baker, 82 F.3d 273, 275-76 (8th Cir. 1996); United States v. Giordino, 260 F. supp. 477, 482 (D. Conn. 2002). As the Supreme Court has observed, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. United States v. Lopez, 514 U.S. 549, 558 (1995). Tykarsky, 2004 WL 1813206 at *2.32 Accordingly, use of the
The Government does not concede, as defendant argues, that use of the internet involves only intrastate activities. See SHAC Mem. at 26, 28. Defendant argues that: - 55 -
32
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internet satisfies the interstate commerce nexus, is properly pleaded in the Superseding Indictment, and this Court should dismiss defendants argument.
Internet communication is generally accomplished by a computer with a modem connecting a local access number for an Internet Service Provider(ISP). After connection is established the e-mail program translates what is typed on a keyboard or an attached to the e-mail into an electronic digital code and transmits the code into the Internet. The message or attachment is electronically transmitted to the Server of the recipients ISP. This is a far cry from the type of conduct which [is] traditionally associated with use of facilities in interstate commerce. Defendant could not be more wrong. Its argument assumes that the Internet is in some netherworld. Moreover, it defies the reality that information over the internet is routinely transferred not only interstate, but around the world. - 56 -
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VI.
THE CRIMINAL CONDUCT CHARGED IN COUNT ONE OF THE SUPERSEDING INDICTMENT, 18 U.S.C. 43(a), IS NOT PROTECTED UNDER THE FIRST AMENDMENT.
All of the defendants, either individually or by joining the arguments of others, claim that Count One of the Superseding Indictment should be dismissed because it violates their First Amendment right to free speech. The First Amendment challenges (1) that
against Count One generally fall into three categories:
the conduct charged in Count One constitutes protected speech under the First Amendment; (2) that 18 U.S.C. 43 is invalid on its face under the doctrine of overbreadth; and (3) that 18 U.S.C. 43 is overly vague. defendants claims fail.33 A. The Conduct Alleged In Count One Is Not Protected Speech. For the reasons discussed below,
Defendants set forth a lengthy discussion of the First Amendment and its protection of political speech and the right to protest matters of public concern. E.g., Kjonaas Mem. at 45.
The Government does not deny that the First Amendment protects the right to engage in political discourse and to engage in lawful protest. However, the issue for this Court is not whether
the defendants have a general First Amendment right to engage in Throughout different sections of his memorandum, defendant Kjonaas makes a series of conclusory statements regarding the defendants speech being protected under the First Amendment. This section of the Governments memorandum responds to all of the First Amendment arguments raised by defendants in connection with 18 U.S.C. 43(a). - 57 33
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political discourse or protest, but rather, whether the conduct alleged in the Superseding Indictment is protected by the First Amendment. This is so because it is equally true that the First Amendment is not absolute. Virginia v. Black, 538 U.S. 343, 358
(2003) (The protections afforded by the First Amendment . . . are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.). Furthermore, the fact that the defendants may
have engaged in some protected speech does not shield them from criminal liability for their conduct that exceeds First Amendment protection. E.g., United States v. Bellrichard, 994 F.2d 1318,
1322 (8th Cir. 1993) (a person may not escape prosecution for uttering threatening language merely by combining the threatening language with issues of public concern); see also United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir. 1999) (The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability.). For the reasons set forth
below, the defendants conduct in this case exceeded the bounds of protected speech. In addressing defendants First Amendment arguments, it is important to note that the defendants are charged with violating the Animal Enterprise Terrorism statute, 18 U.S.C. 43. 43 is not aimed at speech. Section
It is a generally applicable criminal
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statute aimed at conduct that has the purpose, and is done with the intent, to unlawfully disrupt an animal enterprise. The
Superseding Indictment, as discussed further below, charges the defendant with conduct that a grand jury found violated the statute. The fact that their conduct included speech does not
ipso facto entitle it to protection under the First Amendment. Furthermore, in determining whether the Superseding Indictment alleges conduct that exceeds the First Amendment, this Court must consider the statements and conduct in the context in which they occurred. See Bellrichard, 994 F.2d at 1321 (When
determining whether an alleged threat falls outside the realm of protected speech, it is important to focus on the context of the expression.); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (whether conduct or speech is threatening must be considered in light of [the] entire factual context, including the surrounding events and the reaction of the listeners). It is not appropriate, therefore, to isolate
statements and claim, as defendants have done here, that, in a vacuum, the statement is protected. In addition, unless it is clear that the conduct is protected under the First Amendment, the issue is one reserved for the trier of fact. E.g., United States v. Viefhaus, 168 F.3d
392, 397 (10th Cir. 1999) (We consistently have held that whether a defendants statement is a true threat or mere
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political speech is a question for the jury.
If there is no
question that a defendants speech is protected by the First Amendment, the court may dismiss the charge as a matter of law.) (citation omitted); United States v. Hinkson, F. Supp. 2d , 2004 WL 2965864 (D. Idaho Dec. 22, 2004) (Whether a given statement properly qualifies as a true threat is a factual inquiry informed by the entire factual context, including the surrounding events and reaction of the listeners. . . . it is a question for the jury that may only be decided after listening to the complete presentation of the evidence.) (citation omitted). This is so particularly in a case such as here, where the threatening, intimidating and harassing nature of defendants conduct is evidenced by a pattern of activity that spanned several years not isolated incidents. Furthermore, the
testimony of several victims will also evidence the threatening, intimidating and harassing consequences of defendants conduct. See, e.g., Watts v. United States, 394 U.S. 705, 708 (1969 (per curiam) (considering the reaction of the recipients of the speech in determining whether it was threatening). Indeed, the principal cases upon which the defendants and the Government rely were decided after a trial in which all of the evidence and testimony had been presented. The defendants,
however, are asking this Court to dismiss this Superseding Indictment before a complete factual record can be developed.
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For the reasons set forth below, this Court should decline defendants invitation. As charged in the Superseding Indictment and discussed in the Statement of Facts, supra, the defendants are alleged to have conspired to physically disrupt the operations of HLS and drive it out of business either by: (a) directly disrupting the
business of HLS or (b) disrupting the business of companies that either provided services to, or purchased services from, HLS. Superseding Indictment 3. In furtherance of the conspiracy,
the defendants espoused and encouraged others to engage in direct action, which as described by SHAC involved activities that operate outside the confines of the legal system. Id. 6.
Furthermore, of particular importance to the First Amendment issue, the Superseding Indictment alleges that the SHAC website: 1. posted the top 20 terror tactics, which included invading offices, damaging property, stealing documents, physical assault, and vandalism, id. 6; posted the names, addresses, home telephone numbers and other personal information of HLS employees and of employees of companies targeted by SHAC because of their business relationship to HLS, id. 9, 16; encouraged people to engage in acts of harassment and intimidation against those HLS employees and employees of the targeting companies, including those described above, id. 9, 16; reported the acts of harassment and intimidation acts carried out against HLS employees and employees of the targeted companies, id. 11, 17; and used the reports of past acts of harassment and - 61 -
2.
3.
4.
5.
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intimidation as examples of what could happen to anyone who either works for HLS or a company that has a business relationship with HLS, id. 11, 17. In short, the defendants set out to disrupt the business of HLS by conspiring to intimidate, harass, stalk, and bring violence to employees of HLS and any company that had a business relationship with HLS. It is this pattern of targeting victims
for direct action, learning that those targets were in fact subjected to direct action, then continuing to target new victims that violated the law. That language was used to seek
such ends renders the conduct devoid of First Amendment protection. As the Supreme Court recognized in Virginia v. Black, the First Amendment . . . permits a state to ban a true threat. 123 S. Ct. at 1547; accord R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). The Court in Virginia v. Black defined a true
threat as those statements where the speaks means to communicate a serious expression of an intent to commit an unlawful act of violence to a particular individual or group of individuals. 123 S. Ct. at 1548. The Court made clear,
however, that it is irrelevant whether the speaker intended to carry out the threat. Id.
In addition, the Court in Virginia v. Black explained that intimidation in the constitutionally proscribable sense of the word is a type of true threat. Id. The Court defined
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intimidation to mean where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Id.
At issue in Virginia v. Black was a Virginia law outlawing cross burnings done with the intent to intimidate. Id. at 1549.
While recognizing that cross burning is symbolic express, the Court nevertheless concluded that when done with the intent to intimidate it falls outside the contours of free speech. 1549-50. Likewise, in this case, the Government recognizes that some of defendants activities and speech is protected under the First Amendment. However, simply because speech occurs in a public Id. at
forum or in a marketplace of ideas like the internet does not entitle it to protection under the First Amendment. When that
speech or conduct rises to the level of intimidation, or is part of criminal conduct, it loses any protection. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949) ([I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.). For example, in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activities (ACLA), a case factually analogous to the instant
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action, the Court of Appeals addressed whether ACLAs conduct toward physicians and two health clinics that provided medical services to women, including abortions, was protected by the First Amendment. 290 F.3d 1058, 1062 (9th Cir. 2002) (en banc).
In Planned Parenthood, ACLA presented a poster during a press conference at the March for Life event in Washington, D.C., that had the captions GUILTY . . . OF CRIMES AGAINST HUMANITY and THE DEADLY DOZEN followed by the names and home addresses of certain physicians who performed abortions (hereinafter the DEADLY DOZEN poster). Id. at 1064-65. The poster also offered
a $5000 REWARD for information leading to arrest, conviction and revocation of license to practice medicine. Id. at 1065.
This poster and another one with similar information (hereinafter the GUILTY poster) were published in a newsletter and presented at other pro-life events. Id. In addition, ACLA also
established the Nuremberg Files website that listed [a]pproximately 200 people . . . under the label ABORTIONISTS: the shooters, as well as judges, politicians, law enforcement, spouses, and abortion rights supporters. Id. Under the
ABORTIONISTS section of the website, physicians names appeared in either black font (if they were currently working), a grey font (if they had been wounded), or were struck through if the physician had been murdered. Id. The names of three physicians Id.
murdered by pro-life activists were struck through.
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Following a trial, the jury held ACLA liable under the Freedom of Access to Clinics Entrances Act for threatening reproductive health services providers. On appeal, the Court
rejected the ACLAs First Amendment arguments. ACLA, like the defendants here, argued that the action against it was barred by the First Amendment because it was based on political speech that constituted neither an incitement to imminent lawless action nor a true threat. Id. at 1070. In
rejecting ACLAs arguments, however, the Court made it clear that context is critical in a true threats case and history can give meaning to the medium. Id. 1078-79. Indeed, the Court found
that, [b]ecause of context, it could not find that the posters generally described above were just a political statement. at 1079. The Court stated that even if the first couple of posters of this type were political messages, ACLA knew that after the first couple of posters were released, three physicians identified in those posters had been murdered because they performed abortions. Id. at 1079-80; see also 1063-64 (discussing the murders and the fact that they were preceded by WANTED posters identifying the physicians). The Court further explained that knowing the posters, and knowing that Id.
murders followed the release of their
it generated fear among the reproductive health services community, ACLA released the DIRTY DOZEN and GUILTY posters
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to intimidate those physicians.
Id. at 1079.
It was this
pattern that the Court found highly probative of the threatening nature of the ACLAs conduct: The true threats analysis turns on the poster pattern. Neither the Crist poster nor the Deadly Dozen poster contains any language that is overtly threatening. Both differ from prior posters in that the prior posters were captioned "WANTED" while these are captioned "GUILTY." The text also differs somewhat, but differences in caption or words are immaterial because the language itself is not what is threatening. Rather, it is use of the "wanted"-type format in the context of the poster pattern poster followed by murder that constitutes the threat. Because of the pattern, a "wanted"-type poster naming a specific doctor who provides abortions was perceived by physicians, who are providers of reproductive health services, as a serious threat of death or bodily harm. After a "WANTED" poster on Dr. David Gunn appeared, he was shot and killed. After a "WANTED" poster on Dr. George Patterson appeared, he was shot and killed. After a "WANTED" poster on Dr. John Britton appeared, he was shot and killed. None of these "WANTED" posters contained threatening language, either. Neither did they identify who would pull the trigger. But knowing this pattern, knowing that unlawful action had followed "WANTED" posters on Gunn, Patterson and Britton, and knowing that "wanted"-type posters were intimidating and caused fear of serious harm to those named on them, [defendant] published a "GUILTY" poster in essentially the same format on Dr. Crist and a Deadly Dozen "GUILTY" poster in similar format naming Dr. Hern, Dr. Elizabeth Newhall and Dr. James Newhall because they perform abortions. Physicians could well believe that [defendant] would make good on the threat. One of the other doctors on the Deadly Dozen poster had in fact been shot before the poster was published. This is not political hyperbole. Nor is it merely "vituperative, abusive, and inexact." In the context of the poster pattern, the posters were precise in their meaning to those in the relevant community of reproductive health service providers. They were a true threat. Id. at 1085 (citations omitted). In short, the Court held that
although the posters themselves did not contain an overt threat, they constituted threats when considered in the proper context. - 66 -
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Id. at 1079, 1085. Moreover, although the posters were publicly distributed, the Court found that it did not diminish its threatening nature. Id. at 1086. As the Court explained, the posters specifically identified the doctors and ACLA knew that each doctor would be worried. Id. Indeed, the Court noted that the doctors named in Id.
the posters were seriously worried.
With regard to the Nuremberg Files website, the Court found that it, too, constituted threatening speech unprotected by the First Amendment. Id. at 1080, 1085. The Court explained that
the website listed the names of physicians who provided abortion services, and had the name in a grey font if that physician was wounded or struck through if he or she was killed. Id.
As in Planned Parenthood, the First Amendment analysis in this case turns on the pattern of website postings and other communications. Through the defendants coordinated efforts,
SHAC targeted specific individuals for direct action because of their connection to HLS. SHAC did so by publishing their names After
and other personal information necessary to locate them.
these individuals were so identified, they were in fact subjected to direct action. By way of example,34 the Superseding
As discussed in Point I, supra, the factual allegations in the Superseding Indictment are provided by way of example to give defendants sufficient factual orientation for the criminal charges the Government is alleging. Clearly, it does not represent all of the evidence the Government intends to introduce - 67 -
34
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Indictment states that after the names and addresses of HLS employees were posted on or about March 31, 2001, rocks were thrown through their homes. The SHAC website then reported on
these and other similar incidents in a manner designed to spur similar action against other targets and to warn other targets that they, too, would be subjected to direct action. Thereafter,
knowing of this pattern, SHAC continued to identify new targets, provided their personal information, then reported on the website any direct action taken against the targets. This pattern lasted throughout the time period alleged in the Superseding Indictment. For example, after several years of
this pattern, and after numerous past targets had been subjected to acts of vandalism, intimidation and harassment, SHAC targeted C. Corp. in or about May 2003, and warned: We know where you,
we know what you look like we know where you socialize and best of all we know where you live. Superseding Indictment 64.
Following this announcement, as had occurred each time before, C. Corp. employees were subjected to acts of vandalism, intimidation, and harassment. Given this pattern, and given the defendants knowledge that after individuals were targeted they were subjected to unlawful conduct, the defendants claim that they were simply providing public information or advocating a point of view rings hollow.
at trial to prove the charges in the Superseding Indictment. - 68 -
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The defendants knew, and thus it can be inferred they intended, that each time a target was identified by SHAC he or she would be subjected to the same unlawful acts. the ambit of the First Amendment.35 Nevertheless, defendants rely on a series of Supreme Court cases in support of their argument that this criminal prosecution is barred by the First Amendment. is distinguishable from this case. In Watts v. United States, the defendant, an 18-year old Vietnam war protester, told a crowd at a public rally that he was not going to the war and exclaimed, If they ever make me carry a Each of these cases, however, Such conduct falls outside
In addition, this pattern of identifying targets through the Internet for the purpose of encouraging direct action, including violence, further illustrates the threatening nature of the defendants conduct. See Scott Hammack, The Internet Loophole: Why Threatening Speech On-Line Requires A Modification Of The Courts Approach To True Threats And Incitement, 36 Colum. J.L. & Soc. Probs. 65, 67 (2002). As one commentator has explained: A threat in certain contexts may not cause its recipient to be fearful if its occurrence seems very unlikely. However, that same threat masquerading as incitement will generate reasonable fear if it is particularly likely to provoke a third party to carry out the threatened act. The Internet facilitates these threat/incitement hybrids by making them more likely to cause the act they seek to bring about. In particular, the Internet allows a potentially unlimited and transient audience to communicate across the world with great speed and anonymity, and to do so at a fraction of the costs of other modes of communication. Id. Here, it was not simply likely that the threats masquerading as incitement would provoke others to carry out the threat, it was (based upon experience) an almost sure thing. - 69 -
35
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rifle the first man I want to get in my sights is [President] L.B.J. 394 U.S. 705, 706 (1969) (per curiam). For that
statement, he was prosecuted for threatening the life of the President. Id. at 705-06. The Court reversed the conviction,
holding that while threatening a person with violence is not protected under the First Amendment, there was a distinction between threatening a person with violence and political hyperbole. Id. at 707, 708. The Court found that defendants Id. at 708. Taking
statement fell into the latter category.
into account the conditional nature of the statement (If they ever make me carry a rifle . . .) and the reaction of the listeners (the crowd laughed), the Court interpreted defendants statement as a kind of very crude offense method of stating a political opposition to the President. Id.
As the Court in Watts made clear, the speech or conduct must be considered in its context. In Watts, defendant made a single,
conditional statement to a crowd at a rally, and the audience laughed. The context of defendants conduct in this case is much First, victims were specifically targeted for
different.
prolonged periods of time because of their employment with HLS or to a company with business ties to HLS; defendants are not being prosecuted because of a single, isolated statement. there were no conditional hyperbole. Second,
Rather, the defendants
coordinated efforts to subject their targets to direct action.
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Third, the reaction of the recipients was much different than the crowd in Watts. The victims targeted have not laughed. For
example, several witnesses at trial will testify that they were aware that Brian Cass, CEO of HLS, had been beaten with an ax handle by animal rights activities. This information, coupled
with warnings from SHAC such as we know where you live, Superseding Indictment 65, led these witnesses to reasonably fear for their safety and the safety of their families. As a
result, in several instances victims were provided 24-hour-a-day security; in one instance a victim relocated her family; and, in other instances, as even the SHAC website acknowledged, victims were mentally anguished, e.g., Superseding Indictment 24 (SHAC posting reported that DDs, an HLS employees, wife is reportedly on the brink of a nervous breakdown and divorce). The Courts opinion in Brandenburg v. Ohio, 395 U.S. 444 (1969), is also distinguishable. In Brandenburg, the Court declared that the First Amendment does not protect advocacy . . . directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Id. at 447. The
Ohio Syndicalism Act, however, did not distinguish between mere advocacy and incitement to imminent lawless action. 448. The Court, therefore, held that the statute was Id. at 449. Id. at
unconstitutional under the First Amendment.
Defendants claim that under Brandenberg, political speech
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may only be regulated if it rises to the level of inciting lawless action. First, the Courts subsequent, more recent
opinion in Virginia v. Black, discussed supra, clearly refutes such a narrow interpretation of the First Amendment. Second,
merely labeling conduct as political speech does not conclude the analysis. As discussed above, defendants conduct
constituted intimidation, harassment, and threats and, thus, fell outside the First Amendment regardless of the fact that may have been intertwined with political speech. See Viefhaus, 168 F.3d
at 396 (The fact that a specific threat accompanies pure political speech dos not shield a defendant from culpability.). In any event, even under the Brandenberg standard, defendants do not prevail because their coordinated efforts (including their use of the SHAC website) incited numerous acts of violence against SHACs targets, and the defendants, as evidenced by the subsequent reporting of these acts, were well aware that they did. Furthermore, after companies and their
employees were targeted for direct action, the acts of violence imminently followed. Likewise, the Courts opinion in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), does not support defendants position in this case. In Claiborne, the NAACP and its field secretary
organized a boycott on white merchants in Claiborne County, Mississippi. Id. at 898-902. Along with the NAACP, the field
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secretary for the NAACP was sued for, inter alia, giving two speeches. Id. at 889-90. In the first speech, the defendant
told the audience that blacks who traded with white merchants would be answerable to him and uncle toms who broke the boycott would have their necks broken. Id. at 900 n.28. In
the second speech, the defendant told the audience:
If we catch
any of you going in any of them racist stores, were gonna break your damn neck. Id. at 902. The Supreme Court found that the
emotionally charged rhetoric of defendants speeches did not rise to the level of inciting imminent lawless action. 928. Id. at
The Court explained that it was not followed by violence
and there was no evidence the defendant authorized, ratified, or directly threatened violence. Id. at 928-29.
Unlike the defendants in this case, the defendant in Claiborne did not target specific individuals. To the contrary,
defendants statement in Claiborne was conditioned upon if we catch any of you. The SHAC website, however, identified
specific individuals as targets and, in many instances, provided their names, home addresses, telephone numbers, spouses, children, or other personal information. Furthermore, whereas in
Claiborne the emotionally charged rhetoric was not followed by acts of violence, Id. at 928, the defendants here knew that their targets in the past had been subjected to direct action, which included acts of violence. Hence, each time the
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SHAC website targeted a new person, it can be inferred that the defendants intended for the new targets to be subjected to the same type of conduct. The present case is also distinguishable from Claiborne where there was no history that the defendant or the NAACP had engaged in violence against others. Indeed, those who heard the
defendants rhetoric in Claiborne did not take it as a serious threat; they continued to shop at the white merchants. By
comparison, targets of SHAC have been subjected to acts of violence. Hence, an individual targeted on the SHAC website has In
a clear understanding of what could happen to him or her.
that regard, victims will testify that they considered being targeted by SHAC as a serious threat, and feared for their own safety as well as the safety of their family members. See Watts,
394 U.S. at 708 (considering the reaction of the listeners in deciding whether statement was threatening); Planned Parenthood, 290 F.3d at 1075 (explaining that the statement should be considered in light of the entire factual context, including the reaction of the listeners). Defendants conduct in this case is similarly distinguishable from the defendants conduct in Hess v. Indiana, 414 U.S. 105 (1973) (per curiam). In Hess, the police were
attempting to clear a public street of antiwar demonstrators who were blocking the passage of vehicles. Id. at 106. As they
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passed the defendant, he yelled in a loud voice:
Well take
the f***ing street later or Well take the f***ing street again. Id. at 107. Defendant was convicted following a jury Id. at 106. On appeal, the Supreme
trial of disorderly conduct.
Court held that defendants statement did not constitute fighting words as (1) it was not directed by any person or group in particular; and (2) the sheriff who heard it did not believe it was aimed at him because defendant had his back to the sheriff. Id. at 107. The Court also found that the statement which at
worse amounted to advocacy of illegal action at some indefinite future time did not constitute inciting imminent lawless action. Id. at 108.
Again, for the reasons discussed above, defendants conduct is distinguishable from Hess. First, the defendants conduct is
outside the First Amendment not for any one particular, isolated statement, but for the pattern of intimidation, harassment, and stalking (see Point VII, infra). Second, defendants have
targeted specific individuals with the knowledge (based upon past experience) that these individuals would be subjected to unlawful acts. Next, in addition to relying on the above Supreme Court cases, defendant Gazzola claims that the statute is unconstitutional as applied to her under the OBrien test. United States v. OBrien, 391 U.S. 367 (1968). In OBrien, the
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Court declared that a statute that has an incidental effect on First Amendment protection is, nonetheless, constitutional if the government regulation (1) is within the constitutional power of the Government; (2) furthers an important or substantial Government interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 377. Id. at
The OBrien standard, however, is not the appropriate
standard in this case as the charge in Count One is aimed at conduct that, for the reasons discussed at above, is devoid of any First Amendment protection. See id. at 376 (We cannot
accept the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea.). Nevertheless, even accepting defendants argument, the statute at issue passes constitutional muster under OBrien. First, the Governments power to regulate interstate commerce is beyond question. U.S. Const., Art. I, 8. Second, the
Government has a substantial interest in protecting animal enterprises from unlawful disruption. pages 89-90. See Discussion, infra,
Third, that interest is wholly unrelated to the Fourth, 43 is narrowly tailored to
suppression of free speech.
further that interest i.e., to restrict the unlawful disruption
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of an animal enterprise. Next, defendant Kjonaas claims that the defendants conduct could not constitute true threats because SHACs stated goal is to cause economic results. Kjonaas Mem. at 49. However, that
the end sought by the defendants was economic in nature does not insulate them from criminal liability if the means chosen to achieve it include threats, intimidation, stalking, and violence. Defendant SHAC and defendant Kjonaas also argue, without analysis, that [i]t is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys . . . . SHAC Mem. at 30 (quoting Rosenberger v. To
Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995)).36
the extent that SHAC is arguing that Count One must be dismissed because the charges are based upon their particular message, this argument misses the mark. First, the Animal Enterprise Terrorism The statute criminalizes the
statute is not viewpoint-specific.
disruption of an animal enterprise without regard to the message of the violator. Second, as the Court explained in Virginia v.
Defendant Kjonaass argument is bereft of analysis and merely sets forth as a bare assertion of fact: [A]s with the CDA [the Communications Decency Act], the AEPA is a contentbased regulation of speech. Kjonaas Mem. at 56. This Court should not consider such a claim which is raised without any analysis of the legal standard, the facts of the case, or argument in its support. Cf. United States v. Irizarry, 341 F.3d 273, 312 n.23 (3d Cir. 2003) (holding that defendant did not preserve the claim for appeal because he failed to develop[] any argument in his brief to support the claim). In any event, this argument fails for the reasons set forth above. - 77 -
36
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Black, if the speech falls within a proscribable area of speech there is no significant danger of idea or viewpoint discrimination. 123 S. Ct. at 1549 (reiterating that it would
be constitutional to ban only a particular type of true threat). Here, because the defendants conduct constitutes intimidation, threats, and harassment, it is irrelevant what substantive message they were also trying to convey. Defendant SHAC also has a point heading, without any argument, that states that prior restraint is not permitted by the Brandenberg doctrine. SHAC Mem. at 33. It is not clear,
however, how prosecuting SHAC for past conduct constitutes a prior restraint on speech. Indeed, other than the reference to
prior restraint in the point heading and a short quote from New York Times Co. v. United States, 403 U.S. 713 (1971) (explaining that the Government carries a heavy burden when imposing a prior restraint), see SHAC Mem. at 30, defendant SHAC makes no attempt to explain how this prosecution for conduct that has already occurred constitutes a prior restraint. As a result, if SHAC is raising a claim of prior restraint, it lacks merit. In addition, as part of its First Amendment and Due Process arguments, defendant SHAC argues that SHAC cannot be liable for the activities of others. SHAC Mem. at 39-40. The defendants,
however, are charged in the Superseding Indictment for their own conduct. To be sure, the defendants relied upon, and
incorporated, the activities of others to further their goal of - 78 -
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intimidating, harassing, threatening, stalking, and coercing victims into ceasing their ties with HLS. However, they are
being charged for noones conduct, but their own. Similarly, defendant SHAC mischaracterizes the Superseding Indictment by suggesting that the Government is prosecuting SHAC for providing offenders camouflage. SHAC Mem. at 45-48. SHAC
is not being prosecuted for simply publishing anonymous information. SHAC is being prosecuted for the statements it
published on its website, the activities it coordinated and directed, and the context in which those statements were made and activities coordinated. Defendant SHAC also argues that the acts of posting personal information and the top twenty terror tactics are constitutionally protected under the First Amendment. at 48-56. SHAC Mem.
Again, defendant SHAC attempts to separate the
postings from the context in which they were made and to minimize its conduct. The determination of whether the conduct in this
case falls outside the First Amendment is a factual inquiry informed by the entire factual context, including the surrounding events and reaction of the listeners. United
States v. Hinkson, F. Supp. 2d , 2004 WL 2965864 (D. Idaho Dec. 22, 2004) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)). This is so because in a
vacuum, there are certainly circumstances under which the publishing of personal information and a list such as the top twenty terror tactics is protected under the First Amendment. - 79 -
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It turns, however, on a question of intent.
For example, a
newspaper may have a right to publish news even if, in the process of reporting the story, it releases personal information. That is a wholly distinct situation from this case. The evidence at trial will show that the defendants released the personal information with the intent and knowledge that it would lead to harassment, stalking, and violence i.e., SHAC did not merely stand by and report on the activities of others. SHACs very existence was to coordinate the campaign to shut down HLS. SHAC selected the targets to accomplish this goal, chose
the methods to be utilized, and reported on the resulting acts taken against the targets in an attempt to intimidate and threaten these individuals into severing all ties with HLS and any company affiliated with HLS.37 That SHAC was not merely
reporting on the activities of others is perhaps best evidenced by the fact that SHAC sent letters to its victims offering them the opportunity to sever their ties with HLS and, in return, SHAC would cease the direct actions. Finally, the fact that the SHAC website had a disclaimer also fails to insulate the defendants from criminal liability. In some instances, the disclaimer would do little, if anything, to discourage the illegal activity the posting incited. For
example, defendant Kjonaas cites the following disclaimer that
The fact that an individuals personal information may be in the public domain does not insulate a defendant from liability if he or she misappropriates that information to threaten and intimidate that individual. - 80 -
37
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followed the posting of the top 20 terror tactics: get any funny ideas!
Now dont
However, a jury could readily find [such
a disclaimer] to be transparent sarcasm designed to intrigue and entice. Rice v. Paladin Enterprise, Inc., 128 F.3d 233, 254 Indeed, a disclaimer, itself, can be couched
(4th Cir. 1997).
as an incitement and should not always be accepted at face value. Laura Leets, Responses To Internet Hate Sites: Is Speech
Too Free In Cyberspace, 6 Comm. L. & Poly 287, 313 (2001) (pointing out that the website for the hate group World Church of the Creator has a disclaimer but its members increasingly have been linked with violence.). In addition, disclaimers are often
ignored by viewers of the website and, thus, are ineffectual. Id. As a result, the fact that the SHAC website had disclaimers
does not bar this prosecution for criminal conduct outside the First Amendment.38 In sum, the First Amendment is designed to protect and affords the greatest protection when individuals are engaged in speech or expressive conduct designed to persuade or open a dialogue for a free exchange of ideas. The defendants in this
case, however, were not merely seeking to open a dialogue or
SHAC also posted the following self-serving statement: SHAC does not organize, fund or take part in any illegal activity. Kjonaas Mem. at 13 n.5. However, this disclaimer also does little to discourage illegal activity as it is immediately followed by the following sentence: we do support any action that does not harm any animal, human or non human, to further the campaign to shut down HLS. Id. (emphasis added). - 81 -
38
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persuade others through advocacy.
Rather, defendants coordinated
and conspired to use direct action including intimidation, harassment, stalking, and violence to force HLS, companies doing business with HLS, and their employees from engaging in lawful activity. Although the First Amendment guarantees the right to
express ones views, it is not a license to invade the rights of others. The defendants are seeking to use the First Amendment
not as a shield to protect their rights but as a vehicle to justify intimidation, threatening conduct, and harassment for the purpose of coercing others into accepting their message.39 First Amendment was not intended to protect such conduct. The See
Federalist Paper No. 63, at 386 (James Madison) (Clinton Rossiter ed., 1961) (warning that liberty may be endangered by the abuses of liberty as by the abuses of power). Accordingly, for all of
the reasons set forth above, defendants First Amendment argument fails. B. The Animal Enterprise Terrorism Statute Is Not Facially Overbroad.
Several of the defendants also claim that 18 U.S.C. 43(a) is overbroad and, thus, unconstitutional under the First Amendment and the Due Process Clause. E.g., Gazzola Mem. at 3-7.
In support of this position, defendant Gazzola asserts that a
Indeed, defendants, while wrapping themselves in the cloak of the First Amendment, wholly discount the fact that they were trammeling the rights of others to engage in activities of their own choosing. - 82 -
39
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law is facially void for overbreadth if it does not aim specifically at evils within the allowable area of [government] control, but . . . sweeps within its ambit other activities that . . . constitute an exercise of constitutionally protected expression. Id. at 3 (quoting Thornhill v. Alabama, 310 U.S. Although stated accurately, the standard
88, 97 (1940)).
suggested by defendant Gazzolas quote does not correctly reflect the overbreadth doctrine as clarified by the Supreme Court and the Third Circuit in the nearly sixty-five years since Thornhill. As the Third Circuit recognized in Gibson v. Mayor and Council of the City of Wilmington, invalidating a statute for facial overbreadth is strong medicine. 355 F.3d 215, 226 (3d
Cir. 2004) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982); Aiello v. City of Wilmington, 623 F.2d 845, 852 (3d Cir. 1980)). Hence, the overbreadth doctrine is not casually employed. Los
Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32, 39 (1999). To the contrary, a Court must employ[
it] with hesitation, and then only as a last resort. Id. (quoting Ferber, 458 U.S. at 768). Under the overbreadth doctrine, a court must not declare a statute unconstitutional unless it reaches a substantial amount of constitutionally protected conduct. Village of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982) (emphasis added). Simply put, it is not enough for
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defendant to show some overbreadth.
Furthermore, in undertaking
an overbreadth analysis, the Third Circuit has identified the following factors: the number of valid applications, the
historic or likely frequency of conceivably impermissible applications, the nature of the activity or conduct sought to be regulated, and the nature of the state interest underlying the regulation. Gibson, 355 F.3d at 226 (internal quotation marks
and citation omitted). In support of her argument, defendant Gazzola identifies the following reasons: (1) the statute can be read to punish
interstate protest activities, such as a boycott, which are effective at stymying animal testing yet are wholly protected by the First Amendment; (2) it authorizes prosecutions against individuals who speak out against companies which harm animals and, who, as a result, reduce the profits generated from the companies acts of animal cruelty; and (3) it criminalizes organized political campaigns the include elements of expressive conduct as well as pure speech. Gazzola Mem. at 6-7.
The defendants in this case bear[] the burden of demonstrating, from the text of [the law] and from the actual fact, that substantial overbreadth exists. 539 U.S. 113, 122
(2003) (quoting New York State Club Assn., Inc. v. City of New York, 487 U.S. 1, 14 (1988)). Here, the defendants have failed
to satisfy this burden, offering only generalized statements,
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scenarios, and hypotheticals while ignoring the actual text of the statute. First, defendants hypothetical applications ignore the actual text of the statute. Section 43(a) requires that a
defendant (1) have the purpose of causing physical disruption to the proper functioning of an animal enterprise and (2) intentionally damage or cause the loss of any property used by the animal enterprise. Alternatively, 43(a) requires that a
defendant conspire i.e., knowingly and willfully agree to cause physical disruption to an animal enterprise and damage or cause the loss of property used by that animal enterprise. language of the statute makes it clear that it is aimed at conduct specifically, the damaging or causing the loss of property used by an animal enterprise. speech. That is not protected The
While advocacy is clearly protected, damaging or causing Hence, the nature of the
the loss of anothers property is not.
activity or conduct sought to be regulated does not support defendants overbreadth argument. Gibson, 355 F.3d at 226.
Second, the Government has a compelling interest to protect animal enterprises from individuals who seek to unlawfully disrupt their functioning by damaging or causing the loss of their property. Under 43, an animal enterprise includes a
commercial or academic enterprise that uses animals for food or fiber production, agriculture, research or testing. 18 U.S.C.
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43(d)(1)(A).
Regardless of differing opinions about the
ethicalness of animal testing, it is undeniable that the Government has an interest in ensuring that commercial or academic enterprises that use animals to produce food or fiber, for agriculture purposes, or for research (including research mandated by the Food and Drug Administration) are permitted to conduct their lawful business without being subjected to acts of terrorism. Accordingly, the nature of the state interest
underlying the regulation also militates against defendants claim of overbreadth. Gibson, 355 F.3d at 226.
Third, the historic or likely frequency of conceivably impermissible applications does not support a claim of overbreadth. Id. Notwithstanding defendants hypotheticals, the
defendants have not offered a single example (outside of their in this case) that 43(a) has been applied in any of the scenarios they suggest. For example, defendants have not identified a
single actual incident in which an anti-fur ad campaign endorsed by numerous celebrities has been the subject of a prosecution under 43(a). Gazzola Mem. at 6.
Although defendants have conceived impermissible applications of the statute, it is clear that under established Supreme Court precedence, some overbreadth is not sufficient to invalidate a federal statute. Rather, defendants must prove that Defendants have not done
the statute is substantially overbroad.
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so.
To the contrary, it is not as defendant Gazzola would have
this Court believe hard to conceptualize what exactly this statute punishes if it does not punish boycotts and other organized political action. Gazzola Mem. at 6. By its plain
language, it is clear the statutes most likely applications will involve individuals who set fires to animal enterprises, who vandalize the property of animal enterprises, who steal animals from an animal enterprise, and (as in this case) individuals who engage in intimidation and threats to shutdown an animal enterprise. In such a case, where the number and weight of
permissible applications far outweigh the possible invalid applications whether in number or in kind the statute is not unconstitutionally overbroad. Gibson, 355 F.3d at 227. Simply
put, given the more likely permissible applications of this statute, there is no substantial likelihood of chilling free speech rights. Last, this is not a case in which the doctrine of overbreadth should be employed as a last resort. The scenarios
conceived by defendants so clearly fall within the ambit of protected speech that defendants claim that such conduct will be subjected to prosecution under 43 rings hollow. Instead,
individuals who are actually engaged in such protected speech and who are prosecuted can challenge the statute as applied to them in the unlikely event such a prosecution occurs. In this case,
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however, for the reasons discussed in Point VI.A, supra, defendants are not such an example. Accordingly, this Court
should reject their claim to challenge the statute on overbreadth grounds. C. The Animal Enterprise Terrorism Statute Is Not Overly Vague.
Defendant SHAC claims that the animal enterprise terrorism statute is overly vague for these reasons. SHAC Mem. at 41-42.
First, SHAC claims the statutes definition of animal enterprise applies to entities which directly work with animals. However,
in the indictment the Government contends that actions taken against businesses which work with [HLS] or assist [HLS] are violations of the AEPA. Id. at 42. Second, SHAC states that
the Act defines physical disruption to exclude public or employee reaction to disclosure of information, yet that is what SHAC does. Id. Third, no reasonable person could understand
what is covered by economic damage as defined in [ 43(d)(3)]. Id. To sustain a vagueness challenge to a statute, a defendant must show that the statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning. Gibson, 355 F.3d at 225
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)); see also City of Chicago v. Morales, 527 U.S. 41, 52 (1999)( It is established that a law fails to meet the requirements of the - 88 -
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Due Process Clause if it is so vague and standardless that is leaves the public uncertain as to the conduct it prohibits . . . .). Here, SHACs own understanding of the statute defeats any claim of vagueness. In particular, SHAC clearly understands that
the statute generally defines an animal enterprise as an entity which directly work[s] with animal[s]. As SHAC admits, that is HLS. Count One of the Superseding Indictment charges that the
defendants conspired to shut down HLS an animal enterprise. That is the violation of 43 with which the defendants are charged. One of the many ways in which the defendants sought to accomplish the objective of that conspiracy i.e., to shut down HLS was by engaging in direct action against any company regardless of what business it was in that had a connection to HLS. Nothing in the Superseding Indictment, however, suggests
that the defendants are charged with conspiring to shut down any of those companies. To the contrary, defendants made it clear to
each of the non-HLS companies that if they ceased to do business with HLS they would be left alone. There is, therefore, nothing
vague about 43 or the charge in the Superseding Indictment. Likewise, there is nothing vague about the term physical disruption. As SHAC seems to understand from its own
memorandum, the statute defines physical disruption to exclude
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public or employee reaction to disclosure of information. U.S.C. 43(d)(2).
See 18
SHAC, however, misrepresents the exclusion.
The actual language of the statute provides: the term physical disruption does 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. Id. (emphasis added). As discussed at length
above, the defendants are charged with, and the evidence at trial will establish, that SHAC engaged in unlawful conduct, including intimidation, harassment, stalking, and violence to shut down HLS. Such conduct clearly does not fall within the definition
set forth in the statute. Finally, SHAC makes the conclusory statement that no reasonable person could understand what is covered by economic damage. SHAC Mem. at 42. There is nothing vague, however,
about the requirement that economic damages exceed $10,000 for a felony. Defendant SHAC has offered no reasons why a person of
reasonable intelligence cannot understand this provision. That the defendants do not believe their conduct is a violation of the statute does not support the conclusion that the statute is vague. The animal enterprise terrorism statute sets
forth the specific conduct that it prohibits, the specific intent and purpose the defendant must have, and clearly defines several of its terms, including physical disruption, animal
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enterprise, and economic damage.
Defendants, therefore,
cannot show that men of common intelligence must necessarily guess at [the statutes] meaning. Gibson, 355 F.3d at 225.
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VII. THE CRIMINAL CONDUCT CHARGED IN COUNTS TWO THROUGH FIVE OF THE SUPERSEDING INDICTMENT, 18 U.S.C. 2261A, IS NOT PROTECTED UNDER THE FIRST AMENDMENT. Defendants also claim that the charges under the interstate stalking statute infringes upon their First Amendment rights. Defendants SHAC and Kjonaas essentially rely on the First Amendment arguments advanced in connection with the animal enterprise terrorism statute. at 61. See SHAC Mem. at 56; Kjonaas Mem.
Defendant Gazzola similarly relies on the Supreme Court
case law discussed above in support of her claim that her speech is akin to political speech. For the reasons discussed in Point VI, supra, the evidence at trial will establish that defendants conduct exceeded First Amendment protection. In particular, with regard to the
interstate stalking counts, the allegations in the Superseding Indictment are sufficiently pled. Those allegations, if true, by Compare 18
definition would constitute unprotected speech.
U.S.C. 2261(A)(2) (. . . with the intent . . . to place a person in another State . . . in reasonable fear of the death of, or serious bodily injury . . . .) with Virginia v. Black, 538 U.S. 343, 360 (2003) (defining true threats which are unprotected under the First Amendment to include where a speaker directs a threat to a person or a group of persons with the intent of placing the victim in fear of bodily harm or death) (emphasis added). Accordingly, it is a factual issue for
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the jury to decide whether the defendants conduct constitutes conspiracy to commit, and aiding and abetting, interstate stalking. In addition, the defendants are charged in Counts Three, Four and Five with aiding and abetting interstate stalking, a crime under 2261A. That the defendants aiding and abetting
may have taken the form of speech or expressive conduct does not immune them from criminal aiding and abetting liability. As the
Court of Appeals made clear in Rice v. Paladin Enterprises, Inc., every court that has addressed the issue . . . has held that the First Amendment does not necessarily pose a bar to liability for aiding and abetting a crime, even when such aiding and abetting takes the form of the spoken or written word. (4th Cir. 1997). In Rice v. Paladin Enterprises, Inc., the defendants published the Hit Man: A Technical Manual For Independent Contractors a 130-page book of detailed factual instructions Id. at 239. 128 F.3d 233, 244
on how to murder and become a professional killer.
The relatives and representatives of a family murdered by James Perry in exchange for a fee sued the defendant because Perry followed the manual in carrying out the killing. Id. at 240-41.
The Fourth Circuit held that the First Amendment did not pose a bar to a finding that [defendant] is civilly liable as an aider and abetter of Perrys triple contract murder. Id. at 242.
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Although it was a civil case, the Court explicitly noted it was relying on principles of criminal law. See id. at 247-48.
The Court in Rice explained that while even speech advocating lawlessness has long enjoyed protections under the First Amendment, it is equally well established that speech which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct may itself be legitimately proscribed, punished, or regulated incidentally to the constitutional enforcement of generally applicable statutes. Id. at 243.
Hence, while recognizing that the First Amendment may preclude liability on the basis of mere foreseeability or knowledge that the information could be misused for an impermissible purpose, the Court made it clear the First Amendment does not relieve from liability those who would, for profit or other motive, intentionally assist and encourage crime and then shamelessly seek refuge in the sanctuary of the First Amendment. 248. Id. at
Put differently, the Court held that the First Amendment
was not a bar to liability where it can be established that the speech or expressive conduct was undertaken with specific, if not criminal, intent. Id. The Court recognized that whether or
not the speaker acts with the requisite intent is an issue that a jury could reasonably find based upon the evidence. Id. at 248,
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252.40 Furthermore, for purposes of aiding and abetting liability, the fact that the criminal conduct being assisted does not occur imminently does not insulate it from criminal liability. See Rice, 128 F.3d at 246 (explaining that Brandenbergs imminency test is not the relevant inquiry because it is the assistance, not the advocacy, that is being criminalized). the Court explained in United States v. Barnett, The fact that the aider and abettors counsel and encouragement is not acted upon for long periods of time does not break the actual connection between the commission of the crime and the advice to commit it. It is only necessary that the [defendant] counseled and advised the commission of the crime, and that the counsel and advice influenced the perpetration of the crime. We know of no rule of law which fixes a time limit within which the crime must be perpetrated. 667 F.2d 835, 841 (9th Cir. 1982). Here, if the defendants successfully assisted others by detailing to them how to engage in the crime interstate stalking they are criminally liable. The evidence at trial As
will show that the defendants in Counts Three, Four and Five detailed to sympathizers who to target, what to do, and then, in further assistance of the actual stalking, reported on the incidents as part of a design to warn others that they, too, could be subjected to it. Thus, targets of SHAC who visited the
In Rice, the defendant stipulated to a specific intent, and thus, there was no issue for a jury to decide. Id. at 248. - 95 -
40
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website would see the type of acts being taken against other targets and, thus, fear for their own safety. generally Comment, Cyberstalking: See
Can Communication Via The
Internet Constitute A Credible Threat, And Should An Internet Service Provider Be Liable If It Does?, 17 Santa Clara Computer & High Tech. L. J. 115 (Dec. 2000) (available on Westlaw at 17 SCCHITLJ 15) (discussing the concept of cyberstalking i.e., the use of the Internet, e-mail or other electronic communications devices to stalk another person through threatening behavior). Furthermore, based upon all of the circumstances (including in some instances defendants own statements), a jury could reasonably find that the defendants acted with the specific intent to assist the acts of intimidation, stalking, and violence i.e., they were not engaging in pure abstract advocacy. Ultimately, whether or not this evidence is sufficient to prove beyond a reasonable doubt that the defendants aided and abetted interstate stalking is an issue the trier of fact must decide. Accordingly, for these reasons, this Court should reject
defendants motion to dismiss Counts Two through Five.
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VIII.
THE CRIMINAL CONDUCT CHARGED IN COUNT SIX OF THE SUPERSEDING INDICTMENT, 47 U.S.C. 223, IS NOT PROTECTED UNDER THE FIRST AMENDMENT.
Defendants raise several arguments in support of their motion to dismiss Count Six of the Superseding Indictment. First, defendants claim that the Communications Act of 1934, 347 U.S.C. 223, is unconstitutional on its face under the First Amendment. See Gazzola Mem. at 11-12. In support, defendant
Gazzola cites United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). A reading of the opinion in Popa, however, offers little The Court of Appeals in
support for defendant Gazzolas claim.
Popa explicitly refused to consider a facial challenge to 223. See 187 F.3d at 678. Instead, the Court found the statute
unconstitutional as applied to that defendants conduct and refused to consider defendants facial challenge. Id.
In addition, defendant Gazzolas facial challenge to the statute fails for the reasons cited by the Third Circuit in United States v. Lampley, 573 F.2d 783 (3d Cir. 1978), wherein the Court rejected a facial challenge to 223(1)(D) a subsection similar to 223(1)(C) charged in Count Six. 786-788.41 In Lampley, the Third Circuit recognized that Id. at
Congress has the power to impose criminal sanctions on the placement of interstate calls to harass, abuse, or annoy. Id.
Section 223(1)(D) prohibits the making of repeated telephone calls with intent to harass. - 97 -
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at 787.
As the Court explained, Congress had a compelling
interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of person who employ the telephone, not to communicate, but for other unjustifiable motives. Id. Furthermore, the Court continued, the statutes
narrow intent requirement [i.e., that the defendant acted with intent to annoy, abuse, threaten, or harass] precludes the proscription of mere communication and, thus, saves it from constitutional attack for overbreadth. Id.
Here, notwithstanding Gazzolas claim, 223(1)(C) does not apply to anonymous communications that are made for political reasons. Gazzola Mem. at 12. Rather, like the provision at
issue in Lampley, 223(1)(C) explicitly requires a specific intent i.e., the intent to annoy, abuse, threaten, or harass. The Superseding Indictment sufficiently alleges the requisite intent, and the Government intends to prove it at trial. As in Lampley, this intent requirement saves 223(1)(C) from constitutional attack for overbreadth. The Third Circuits opinion Lampley also defeats defendants argument that 223 is void for vagueness. rejected this argument, holding: [Defendant] cannot claim confusion about the conduct proscribed where, as here, the statute precisely specifies that the actor must intend to perform acts of harassment in order to be culpable. Id. at 787. Likewise, in this case, the defendants cannot claim - 98 The Court in Lampley
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confusion about what the statute proscribes. Furthermore, 223 is not unconstitutional as applied to the defendants conduct. The defendant again rely on Popa in support
of their claim that the sending of black faxes is protected speech. In Popa, the defendant, a political refugee from
Romania, made seven telephone calls to the U.S. Attorney for the District of Columbia, calling him a criminal, a negro, a criminal with cold blood, and a whore, born by a negro whore, [who] became chief prosecutor of Washington, D.C. 673-74. 187 F.3d at
At trial, the defendant claimed he made the calls to
complain about two African-American police officers who, he said, threatened to beat him up. Id. at 675 & n.*. He also claimed he Id. After
called to complain about a pending case against him.
a jury trial, defendant was convicted of violating 47 U.S.C. 223(a)(1)(C). On appeal, the District of Columbia found that
the defendant engaged in protected, political speech that could not be the subject of a prosecution under 223. Id. at 677-78.
The Court reasoned that the defendants complaints about the actions of a government official were a significant component of his calls. Id.
Unlike the defendant in Popa, the defendants did not conspire to send black faxes to engage in a political discourse. By their own statements (and the statements of co-conspirators), black faxes were sent to harass and annoy, as well as to prevent
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the recipients of the faxes from conducting their business by, among other things, knock[ing] out the entire line of communication. Superseding Indictment, Count Six 6. In that
regard, black faxes according to the top 20 terror tactics posted by the SHAC website were intended to caus[e] fax machines to burn out. This case, therefore, is distinguishable
from the political refugee in Popa who called to complain about having been assaulted by police officers and about the prosecutors conduct of a case against him. 187 F.3d at 416.42
It must also be pointed out that SHAC, and the other defendants are charged with conspiring to violate 47 U.S.C. 223(a)(1)(C), in violation of 18 U.S.C. 371. Indictment, Count Six 2. Superseding
Defendant SHAC claims that Count Six
should be dismissed because there is no evidence that SHAC-USA sent any transmissions or that SHAC did not disclose its identity. SHAC Mem. at 58-60. Similarly, defendant Kjonaas
asserts that there is no allegation that the individual defendants used any telecommunications device for any purpose whatsoever, ever. Kjonaas Mem. at 62. While accurate, it
ignores the fundamental differences between a substantive offense
The fact that, as defendant Gazzola claims, the ultimate end was to bring about change in corporate policies does not diminish the fact that the particular means were specifically intended to annoy and harass the recipient of the black fax. Throughout their memoranda, defendants employ an ends-justify-the means approach. When the means violate the law, however, the end is irrelevant. - 100 -
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and a conspiracy.
Count Six of the Superseding Indictment The evidence at trial will support that
charges a conspiracy.
charge namely, that SHAC and the other defendants conspired with one another and others to send black faxes for the purpose of abusing, threatening, and harassing the persons at the called numbers. Moreover, defendants are not being prosecuted for the content of their communication, but for their agreement to send black faxes for the specific intent of harassing and annoying the persons at the called numbers. As noted above, the evidence will
show that the defendants intended to block the recipients from using their faxes and, thus, to annoy and harass. The harassing nature of the facsimile is further increased because the recipient has no method of identifying the actual sender and confronting him or her. That SHAC coordinated these
activities and thus could be identified as the cause of them, see SHAC Mem. at 60 does little to identify the actual senders. To the contrary, the SHAC website instructed individuals on what to do to avoid having their identity revealed. Last, the defendants fail to appreciate that First Amendment rights are available to all individuals. A facsimile or The
telephone is a medium for individuals to engage in speech.
defendants intent, however, was to knock out the entire line of communication of the recipients of the black faxes, thus
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frustrating their ability to engage in speech.
Certainly, the
defendants First Amendments rights do not usurp the rights of the victims they targeted.
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FULLMERS AND HARPERS MOTIONS In addition to joining the motions of other defendants, defendants Fullmer and Harper have renewed certain preliminary motions that were not resolved by the Court during the hearing on November 19, 2004. In its Memorandum In Opposition to those
motions, filed on November 12, 2004, the Government responded to those motions. For the Courts convenience, those arguments are
reproduced below.
IX.
THE SUPERSEDING INDICTMENT SHOULD NOT BE DISMISSED AGAINST DEFENDANTS FULLMER AND HARPER.
Defendant Darius Fullmer and Joshua Harper argue, for similar reasons, that the Superseding Indictment should be dismissed as against them. Defendant Fullmer argues that the
Government has not set forth a cause of action as to him (Fullmer Mem. at 743), while defendant Harper argues that no probable cause is revealed to support the Superseding Indictment. (Harper Mem. at 7). In essence, both defendants argue that the
case should be dismissed as against them because the Superseding Indictment itself is lacking. Defendant Fullmer cites two cases in support of his argument, both of which are inapposite to the instant motion and both of which favor the denial of his motion.
43
In United States
The Fullmer memorandum of law is not paginated. Citations to it will be made by using the page beginning with STATEMENT OF FACTS AND PROCEDURAL HISTORY as page 1 and counting from there. - 103 -
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v. Lyons, 53 F.3d 1198 (11th Cir. 1995), the Court affirmed the conviction of a defendant after trial. The case does not deal
with dismissal of a matter based upon an infirmity in the indictment. argument. United States v. Locasio, 6 F.3d 924 (2d Cir. 1993) is similar to Lyons. after trial. In Locasio, the defendants were convicted Thus, citation to Lyons does not support defendants
Defendant Locasio argued on appeal that he should
not have been convicted merely for his presence at certain meetings. Locasio, 6 F.3d at 944. The Government had proven at
trial that he presence at certain meetings, even thought he did not speak, was an important fact in the full panorama of events. Id. Ultimately, the Court, in rejecting the defendants arguments
and holding that the jury was entitled to consider whether it was likely that the defendants mere presence was in furtherance of the conspiracy, stated that the government did far more than establish mere presence. Id. at 945. So too here, the ultimate
resolution of this matter should await the presentation of evidence by the Government and the deliberation of the facts by a jury. Both defendants Fullmer and Harper misperceive the pleading and proof requirements of the overt acts in furtherance of the conspiracies in this case. Both seem to understand that the
Government must allege all of the overt acts in furtherance of the conspiracy in the Superseding Indictment. Indeed, both argue
that they are not named in many of the overt acts and that in - 104 -
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some way supports their argument for dismissal.
However, the
Government is not limited in its proof at trial to those overt acts alleged in the Indictment. F.2d 31, 38 (3d Cir. 1976). United States v. Adamo, 534
Moreover, the Government is under Id. All that
no obligation to prove every overt act alleged.
is required is that the Government prove that a single overt act in furtherance of the Superseding Indictment be proven to the jury beyond a reasonable doubt. in itself illegal. The overt act need not even be
United States v Palmeri, 630 F.2d 192, 200
(3d Cir. 1990), citing Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed.2d 23 (1942). Thus, this matter
must await trial where the Government will be put to its burden of proof. Accordingly, defendants motion to dismiss at this
time should be denied. Defendant Harper seeks dismissal of the Superseding Indictment because it is vague and lacks probable cause (Harper Mem. at 7) yet cases that he cites do not address either of those points. Rather, he argues that the First Amendment precludes the See Terminiello v. Chicago, 337
Government from prosecuting him.
U.S. 1, 69 S.Ct. 894, 93 L.Ed. 113 (1949); Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941); Craig V. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947); and Herndon ve Lowrey, Sheriff, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066 (1937). As is set forth above, that argument and its resolution The argument made
should await further briefing by all parties.
here -- that the Superseding Indictment is vague and lacks - 105 -
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probable cause
is, for the reasons set forth above, lacking in
merit and should be dismissed.
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X.
DEFENDANT FULLMERS REQUEST FOR SEVERANCE LACKS FACTUAL AND LEGAL BASIS.
Defendant Fullmer asserts that he cannot receive a fair trial unless he is severed for trial from his co-defendants. the reasons set forth below, this is not supported by law or fact. Rule 8(b) permits the joinder of defendants in the same indictment if they are alleged to have participated in the same act or transaction or series of acts or transactions constituting an offense. If the pleadings allege participation in the same For
act or series of acts, this is sufficient to justify joinder, even if the count of the indictment alleging this participation is ultimately dismissed. 511, 514 (1960). Schaeffer v. United States, 362 U.S.
The Court of Appeals for the Third Circuit has
found that since a conspiracy claim "provides a common link, and demonstrates the existence of a common scheme or plan" it satisfies the "series of acts" requirement. United State v.
Somers, 496 F.2d 723, 729 (3d Cir. 1074), abrogated on other grounds, United States v. DiLoreto, 888 F.2d 996 (3d Cir. 1989); see also United States v. Irizarry, 341 F.3d 273, 289 (3d Cir. 2003) (quoting Somers for this proposition). Relatedly, the
Third Circuit has expressed a clear preference in conspiracy cases "to have all of the parties tried together so that the full extent of the conspiracy may be developed." Provenzano, 688 F.2d 194, 199 (3d Cir. 1982). United States v. In such cases, the
important interest in judicial economy usually weighs in favor of
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trying the defendants in a single trial.
Id.
Under Rule 14 of the Federal Rules of Criminal Procedure, however, the court has the discretion to grant a severance of the defendants if it appears that the defendant or government will be prejudiced by a joint trial. Neither mere allegations of
prejudice nor the assertion that a severance would improve a defendant's chance for acquittal justifies a severance. States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981). Similarly, a defendant is not entitled to severance merely on the basis of a disparity in the strength of the evidence against a co-defendant, since "if that were the case, a joint trial could rarely be held." United States v. Dansker, 537 F.2d 40, 62 (3d See also United United
Cir. 1976), cert. denied, 429 U.S. 1038 (1977).
States v. Adams, 759 F.2d 1099, 1113 (3d Cir.), cert. denied, 474 U.S. 906, 971 (1985); United States v. Simmons, 679 F.2d 1042 (3d Cir. 1982), cert. denied, 462 U.S. 1134 (1983). Instead, a defendant must show that the evidence is so complex or confusing that a jury could not compartmentalize the evidence and consider it for its proper purposes, Dansker, 537 F.2d at 62; United States v. DeLarosa, 450 F.2d 1057 (3d Cir. 1971), cert. denied, 405 U.S. 957 (1972), and that the failure to sever clearly and substantially prejudices him to the point of depriving him of a fair trial. Reicherter, 647 F.2d at 400.
In the case at bar, each defendant is on trial for conspiring with others, through illegal actions, to shut down HLS. Each of the defendants including Fullmer - has - 108 -
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participated in one or more acts in furtherance of the object of the conspiracy. This conspiracy, and the acts engaged in to
further its object, provide a satisfactory basis for a joint trial of these defendants. Moreover, the nature of the evidence against each defendant is not complex or confusing. Rather, the evidence against each
defendant can be compartmentalized by the jury and the Court can instruct the jury regarding the proper use of the evidence.44 For all these reasons, the defendant's request for severance is without basis and should be denied.
To this end, the United States respectfully suggests that the Court instruct the jury in accordance with the dictates of the case law cited above regarding the consideration it should give the evidence offered against each defendant. - 109 -
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XI.
THIS COURT SHOULD DENY DEFENDANT HARPERSS MOTION TO SUPPRESS BECAUSE THE WARRANT TO SEARCH HARPERS RESIDENCE WAS BASED UPON PROBABLE CAUSE AND IT DESCRIBED THE ITEMS TO BE SEIZED WITH PARTICULARITY.
Defendant Harper is challenging the search conduct by FBI agents of his residence at 5526 17th Avenue, Seattle, Washington. The search of this residence was conducted pursuant to a search warrant issued by a United States Magistrate Judge for the Western District of Washington. As discussed further below, the
warrant was based upon probable cause that a search of Harpers residence would reveal evidence, fruits, or instrumentalities of the commission of crimes committed in violation of 18 U.S.C. 43, 371, and 875(c). In that regard, the warrant authorized a
search for, and the seizure of, specific items related to the violations of those federal offenses. (Attachment A to Warrant). See Attachment ----
FBI agents relied upon the judicially
issued warrant to conduct the search of Harpers residence. Harper now argues that the warrant lacked probable cause that (1) he was a principal in SHAC; and (2) he engaged in specific illegal activity. Harper Mem. at 15. While
acknowledging that SHACs listed criminal activities [in the affidavit] may have been sufficient to search SHAC headquarter, and that it is clear Harper associated with SHAC, Harper nevertheless claims that these facts do not provide probable cause for a search of his residence because [m]ere association with an organization absent more, is never sufficient. Id.
Harper also suggests that probable cause is lacking because the
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affiant who submitted the affidavit in support of the warrant did not speak from personal knowledge. Id. at 16. In
addition, Harper asserts that the warrant lacks particularity. Id. at 17. All of Harpers arguments fail. As discussed below, the
affidavit did provide sufficient probable cause to support the issuance of the search warrant. Moreover, the items to be seized In any event,
were described with the requisite particularity.
the FBI agents relied upon the warrant in good faith, and thus, suppression is unjustified based upon the Leon good faith exception. A. The Warrant Demonstrated The Existence Of Probable Cause.
The warrant demonstrated the existence of probable cause. Probable cause is determined by a totality of the circumstances test. 1997). United States v. Williams, 124 F.3d 411, 419 (3d Cir. In determining whether there is probable cause based upon
the facts contained in an affidavit, this Court must give deference to the initial probable cause determination made by the magistrate judge . United States v. Conley, 4 F.3d 1200, 1205
(3d Cir. 1993); see also United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (explaining that the Court of Appeals sits like a district court and must, like the district court, give great deference to the magistrate judges probable cause determination). The task of the issuing magistrate is simply to determine
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whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. The
reviewing court is to uphold the warrant as long as there is a substantial basis for a fair probability that the evidence will be found. Id. Although in a particular case it may not be
easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. United States v. Ventresca, 380 U.S. 102,
109 (1965); accord United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Finally, in making this determination, the affidavit
must be read in a common sense and nontechnical manner. Williams, 124 F.3d at 420; Conley, 4 F.3d at 1205-06. The warrant in the case sub judice demonstrated the existence of probable cause that evidence of the commission of crimes in violation of 18 U.S.C. 43 (Animal Enterprise Terrorism), 371 (conspiracy), and 875(c) (threatening interstate communications) may be found at Harpers residence. The existence of such probable cause was sufficient to authorize a search of Harpers residence. See Illinois v. Gates, 462 U.S.
213, 238 (1983) (defining probable cause to search as a fair probability that contraband or evidence of a crime will be found in a particular place). First, the affidavit in support of the warrant showed that [n]otwithstanding SHACs claim that it is a legal organization
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that does not break the law, following their identification as targets of SHAC, HLS and its employees, and companies doing business with HLS and their employees, have been subjected to numerous criminal acts, including acts of violence. See Gutierrez Aff. 8 (Appendix A to Harpers Mem.). In
support, the affidavit noted that one of the managing directors of HLS in the United Kingdom was severely beaten and at least eleven of HLSs United Kingdom employees have had their cars firebombed. Id. The affidavit also noted that in March 2001,
animal rights activists broke into an HLS facility in New Jersey and stole fourteen beagles. Id. 9. The affidavit explained
that although the SHAC website posts these events anonymously and states that SHAC does not condone illegal activities, the affiant had probable cause to believe that this anonymity and these statements represent nothing more than an effort to evade responsibility for the crimes at issue. Id. In support, the
affidavit set forth one example in which resumes of students who submitted applications to HLS were stolen from a job fair at Rutgers University. Id. 10. SHAC placed a posting on its
website from the person responsible, but claimed it was anonymous. Id. 11. Within days, however, SHAC itself posted
the names and addresses of the students and posted a sample letter that others could send to the students to harass them. Id. at 11. In addition, the affidavit stated that the SHAC
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website itself (1) threatens individuals as to what will happen to them if they become targets of SHAC (and cited as an example the Top 20 terror tactics posted on the website), and (2) claims that its efforts have caused substantial disruption to HLS and its business. Id. 13, 15. Taken as a whole, these
factual assertions in the affidavit provided a fair probability that SHAC and its organizers were engaged in criminal activity, including violations of 18 U.S.C. 43. as much. See Harper Mem. at 15. Indeed, Harper concedes
Second, the affidavit provided probable cause that Harper was an active participant and leader in the SHAC campaign. Gutierrez Aff. 20. (1) In support, the affidavit stated that:
Harper was active at numerous SHAC events and protests
(including a presentation in which Harper explained that we at SHAC were telling people this guys the owner [i.e., Warren Stevens of S. Corp.], heres the board of directors, and thats what we were targeting); (2) Harper stayed at the SHAC headquarters while in New Jersey; and (3) Harper himself had publicly stated on several occasions that he was involved with the SHAC campaign. Gutierrez Aff. 20-22, 27. In addition,
the affidavit pointed out that an analysis of telephone toll records revealed that the telephone at Harpers residence had been in regular contact with the SHAC headquarters. Id. 23.
Similarly, an analysis of Harpers e-mail account indicated that
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he had been in regular contact with defendant Kjonaas.
Id. 24.
Taken as a whole, these factual assertions in the affidavit provided a fair probability that Harper was an active participant in the SHAC campaign. Given the factual assertions in the affidavit that SHAC was involved in criminal activity and that Harper was active in SHAC and in regular contact with others in SHAC, the search warrant was supported by probable cause that evidence of SHACs criminal activities may be found at Harpers residence. This Court,
therefore, should not set aside the magistrate judges probable cause determination. Harper appears to believe that if the warrant did not demonstrate that evidence of Harpers own criminal activity would be found within the residence, it did not demonstrate the existence of probable cause. This is incorrect. Although the
warrant did not necessarily provide direct evidence that proof of Harpers participation in criminal activity would be present in his residence, direct evidence linking the place to be searched to the crime is not required for the issuance of a search warrant. Conley, 4 F.3d at 1207. Instead, probable cause can
be, and often is, inferred from the type of crime, the nature of the items sought, the opportunity for concealment, and normal inferences about where a criminal might hide items. See id.
Here, the warrant provided evidence that SHAC engaged in illegal
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activities, that Harper was an active participant in SHAC, and that Harper had regular contact (via e-mail communications) with others engaged in SHACs illegal activities. Given these facts,
it was a reasonable inference that in his residence (and specifically in his computer) there might be evidence regarding these illegal activities. Harper also challenges the warrant by attempting to argue that the warrant lacked probable cause because it relied exclusively on information told to the affiant. 16. Harper Mem. at
This assertion, however, is refuted by the affidavit itself.
In the affidavit, Special Agent Gutierrez of the FBI, states that the information in the affidavit is based upon (1) his own investigation, which he had participated in for approximately one year; (2) his review of reports prepared by other law enforcement officers; and (3) information provided to him by other law enforcement officers. Gutierrez Aff. 1. Throughout
the affidavit, Agent Gutierrez indicates that he has personal knowledge of the information contained in the affidavit, e.g., id. 23 (I am aware that telephone calls regularly have been made . . .); 25 (I also know that Harper has continued to maintain e-mail contact with SHAC . . . . I am aware of e-mail sent between Harpers e-mail address and SHACs . . . headquarters). Agent Gutierrez also makes numerous references
to the materials he is relying upon in the affidavit, see, e.g.,
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id. 6 (According to a newsletter published by SHAC . . .; 8 (a posting on SHACs website . . .); 13 (The website also threatens individuals as to what will happen to them if they become targets of SHAC.); 14 (Another posting on the SHAC website gives tips on making harassing telephone calls.). affidavit makes clear that the affiant relied upon his own personal knowledge and information he reviewed. Consequently, The
Harpers assertion that Agent Gutierrez relied exclusively on information told to him by others is not accurate. Last, Harper suggests that probable cause to seize his computer was lacking because, as the affidavit recognizes, Harpers computer was struck by a tree and . . . he had used a special kind of software to wipe out information. at 17. Harper Mem.
Harper conveniently ignores the following explanation in
the affidavit: Although it has been reported that Harper used a wiping software that erased the hard drive on his own personal computer each time the computer was turned off, computer experts with whom I have consulted have informed me that it still is likely that they will be able to recover evidence from the computer using sophisticated software and/or techniques. Those same experts have informed me that they also believe that, even though Harpers personal computer was damaged when the tree fell and caused an electrical surge and rendered the computer inoperational in December 2002, they believe that it is likely that stored evidence still could be recovered from the computer. Therefore, Harpers argument that there was no probable cause to search his computers lacks merit. For all these reasons, the totality of the circumstances - 117 -
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regarding the evidence in the warrant was sufficient to establish probable cause a fair probability that contraband or evidence of crime will be found in a particular place. Gates, 462 U.S. at 238. B. Illinois v.
This was all that was required.
The Warrant Described The Items To Be Seized With Sufficient Particularity.
Harper also claims that the warrant failed to adequately particularize the property to be seized. is somewhat confusing. This argument, however,
Harper relies on the inventory of items
seized during the search to claim that the search warrant lacked particularly. See Harper Mem. at 17. It is not clear how an
inventory of items seized during the ensuing search either adds or subtracts from the particularly of a search warrant. In any
event, the warrant in this case described the items to be seized with sufficient particularity. A search warrants language describing the items to be seized must be sufficiently definite to enable the searcher to reasonably ascertain and identify the things authorized to be seized. United States v. Mosby, 101 F.3d 1278, 1281 (8th Cir. The purpose of this requirement is
1996) (quotations omitted).
to prevent general exploratory rummaging through a persons belongings. Id; Conley, 4 F.3d at 1207 (in order to prevent a
generally, exploratory rummaging, a warrant must give a particular description of the things to be seized). However, the
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hypertechnical one; rather, a standard of practical accuracy is used. Mosby, 101 F.3d at 1281; United States v. Jones, 54 F.3d
1285, 1291 (7th Cir. 1995) (holding that the particularity requirement traditionally has been applied in a pragmatic fashion that recognizes realistically the needs of law enforcement and gives due regard for the practicalities of the situation). Here, the warrant provided the particularity required. allowed for the seizure of items that constituted evidence, fruits, or instrumentalities of violation of 18 U.S.C. 43, 371, and 875(c), including specifically: or relating to HLS, (2) SHAC, (3) (1) documents referring to It
documents referring to or relating to
documents referring to or relating to companies and
employees targeted by SHAC (and listed specific companies), (4) documents relating to animal enterprise terrorism or any illegal activity related to interstate travel in aid of those crime, (4) mailings lists, telephone books, and similar items, (5) all computers and computer-related items. This specificity
fulfilled the particularity requirement of the Fourth Amendment. This Court has upheld general categories when the categories are limited by the type of crime being investigated in this manner. For example, in Conley, the warrant used the phrase all However, this Court noted that the warrant
revenue records.
limited the search to items related to an illegal gambling operation, which had the requisite specificity. See United
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States v. Kepner, 843 F.2d 755, 762-63 (3d Cir. 1988); United States v. Johnson, 690 F.2d 60, 64-66 (3d Cir. 1982) (upholding warrant against particularity challenge where warrant allowed seizure of instrumentalities of the commission of the crime of conducting an illegal gambling business). Here, as in earlier
Third Circuit cases, the allegedly general authorization to seize the items is limited by the type of crimes identified in the affidavit namely, violations of 18 U.S.C. 43, 371, and 875(c). As this Court has noted, no tenet of the Fourth
Amendment prohibits a search merely because it cannot be performed with surgical precision. Conley, 4 F.3d at 1208.
Here, the warrant provided the requisite particularity to satisfy the Fourth Amendment. C. The Officers Relied On The Warrant In Good Faith And Thus Suppression Is Not Warranted.
In any event, suppression is unnecessary because the items seized were obtained in objectively reasonable reliance on the warrant issued. United States v. Leon, 468 U.S. 897, 920-26
(1984) Under Leon, even if warrant lacks probable cause, the exclusionary rule cannot be applied to suppress evidence obtained in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate. Id. (a warrant issued by a
magistrate normally suffices to establish that reliance on the warrant was objectively reasonable). Only where the warrant was
based on a barebones affidavit so lacking in indicia of - 120 -
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probable cause as to render official belief in its existence entirely unreasonable, can evidence be suppressed. 915, 919, 923.45 Here, the warrant was not so lacking in indicia of probable cause as to render the agents belief in its existence entirely unreasonable. As set forth supra, the warrant presented a number This was not a case in which the warrant 468 U.S. at
of specific facts.
contained mere conclusory assertions or a single piece of evidence which the law of the stationhouse shop would recognize as clearly insufficient. 124 F.3d at 421. Williams, 3 F.3d at 74. See Williams,
Accordingly, for this additional reason,
suppression is unjustified.
There are four exceptions to the Leon good faith exception: (1) the magistrate issued the warrant in reliance on a deliberately ro recklessly false affidavit; (2) the magistrate abandoned his judicial role and failed to preform his neutral and detached function; (3) the warrant was based on an affidavit so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable; or (4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized. See Williams, 3 F.3d at 74 n.4. None of these exceptions is present here. - 121 -
45
Filed 02/18/05 Page 128 of 129
XII. THE GOVERNMENT HAS NO OBJECTION TO THE DEFENDANTS' REQUESTS TO JOIN IN THE APPLICABLE MOTIONS FILED BY THEIR RESPECTIVE CO-DEFENDANTS. Each of the defendants has moved for leave to join in the motions filed by their respective co-defendants. The Government
has no objection to their request to join in the applicable motions of their co-defendants.
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CONCLUSION For the foregoing reasons, the Court should deny the defendants' motions.
Respectfully submitted, CHRISTOPHER J. CHRISTIE United States Attorney By: s/ Charles B. McKenna Charles B. McKenna Assistant U.S. Attorney s/ Ricardo Solano Jr. Ricardo Solano Jr. Assistant U.S. Attorney
Date: February 18, 2005 Newark, New Jersey
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Govn Opposition Dismiss Superced Indict

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Case 3:04-cr-00373-AET Document 81

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TABLE OF CONTENTS Cross-Reference Tables . . . . . . . . . . . . . . . . . iii 1 2 14 14 15 16 26 30 32 37

Preliminary Statement . . . . . . . . . . . . . . . . . . Statement of Facts Argument I. . . . . . . . . . . . . . . . . . . .

VENUE IS PROPERLY LAID IN THE DISTRICT OF NEW JERSEY . . . . . . . . . . . . . . . . . .

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Points I, VIII Point VIII

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Response in Governments Brief Point I

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Response in Governments Brief Point VI

Point VII Point VIII

Response in Governments Brief Point I

Response in Governments Brief Point I, IX

Response in Governments Brief I, IX

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East Millstone, New Jersey.

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the SHAC website.

For instance, the SHAC website posted

driveway and a second car was vandalized.

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The Standard. For purposes of ruling on a motion to dismiss an

(S.D.N.Y. 1971), aff'd, 957 F.2d 45 (2d Cir. 1992).

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United States v. Eichman, 756 F. Supp. at 146.

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