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Thomas J. Nolan (SBN 48413) Emma Bradford (SBN 233256) Nolan, Armstrong & Barton LLP 600 University Ave. Palo Alto, Ca. 94301 Tel. (650) 326-2980 Fax (650) 326-9704 Counsel for Defendant Adriana Stumpo

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION UNITED STATES, Plaintiff, v. Case No. CR 09-263 RMW REQUEST FOR DETERMINATION ON SCOPE OF RELEVANT EVIDENCE AT TRIAL AND PROPOSED JURY INSTRUCTIONS

ADRIANA STUMPO Defendant Date: June 7, 2010 Time: 9.00 a.m. Court: Ctrm 6, 4th Floor, Hon. R. M. Whyte

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TABLE OF CONTENTS i

TABLE OF CONTENTS TABLE OF AUTHORITIES...ii I. INTRODUCTION...1 A. TO WHAT EXTENT IS THE SUBJECTIVE INTENT OF THE DEFENDANTS RELEVANT AND ADMISSIBLE AT TRIAL?........................................................................................................2 B. TO WHAT EXTENT IS THE REACTION OF THE SPECIFIC INDIVIDUALS AT WHOM DEFENDANTS ACTIVITY WAS DIRECTED RELEVANT AND/OR ADMISSIBLE EVIDENCE AT TRIAL? ......8 C. TO WHAT EXTENT WILL THE CONCEPT OF STRICTISSIMI JURIS APPLY TO THIS CASE?....................................................................10 II. PROPOSED JURY INSTRUCTIONS..16

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases:

TABLE OF AUTHORITIES

Brandenburg v. Ohio 395 U.S. 444 (1969) 2, 14 Fogel v. Collins 531 F.3d 824 (9th Cir. 2008).2, 7 In re M.S. 10 Cal.4th 698 (Cal. 1995)2 Members of City Council of Los Angeles v. Taxpayers for Vincent 466 U.S. 789 (1984)...4 Miller v. Gammie 335 F.3d 889 (9th Cir. 2003) (en banc).....6 NAACP v. Claiborne Hardware 458 U.S. 886 (1982) ..14, 15 Noto v. United States 367 U.S. 290 (1961).....13 Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists 290 F.3d 1058 (9th Cir. 2002) (en banc)...2 Roy v. United States 416 F.2d 874 (9th Cir. 1969).2, 7 Secretary of State of Md. v. Joseph H. Munson Co 467 U.S. 947 (1984)...4 United States v. Barrett 539 F.2d 244 (1st Cir. 1976)12 United States v. Cassel 408 F.3d 622 (9th Cir. 2005).5, 6, 7 United States v. Dellinger 472 F.2d 340 (7th Cir. 1972)...12 United States v. Fullmer 584 F.3d 132 (3d Cir. 2009).....15 United States v. Gilbert 813 F.2d 1523 (9th Cir. 1987) ...6
TABLE OF AUTHORITIES ii

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TABLE OF AUTHORITIES iii

United States v. Lincoln 403 F.3d 703 (9th Cir. 2005).5 United States v. Montour 944 F.2d 1019 (2d Cir. 1991).11, 12 United States v. Orozco-Santillan 903 F. 2d 1262 (9th Cir. 1990)......2, 3 United States v. Romo 413 F.3d 1044 (9th Cir. 2005)...6, 7 United States v. Scales 367 U.S. 203 (1961)...13, 15 United States v. Spock 416 F.2d 165 (1st Cir. 1969)..11, 12, 13, 14, 15, 17 United States v. Stewart 420 F.3d 1007 (9th Cir. 2005)...7 Virginia v. Black 538 U.S. 343 (2003)..2, 3, 4, 5 Watts v. United States 394 U.S. 605 (1969)..2 Yates v. United States 354 U.S. 298 (1957) .11 Other Authorities: 18 USC 43.8 18 USC 371.11 18 USC 871(a)..7, 8 18 USC 18605 Fed. Rules of Evidence 403...10

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I.

INTRODUCTION Ms.

Adriana Stumpo is a twenty-one-year-old college graduate with no prior record.

Stumpo is a defendant in the above-entitled action charging her with a violation of 18 USC 43, the Animal Enterprise Terrorism Act (AETA). In 2006, the former version of 18 USC 43, the Animal Enterprise Protection Act (AEPA), was substantively and significantly amended and renamed the AETA. At this time, while there have been prosecutions and at least one trial under the AEPA, it does not appear that any trials have taken place under the AETA. It is clear, however, that the AETA as it is currently written intersects with and raises significant constitutional First Amendment issues. It is defense counsels belief, based upon the indictment and the evidence which has been produced and discovered, that the government is alleging that Ms. Stumpo and other individuals

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were, during the time specified in the indictment, at the scene of various protests, where they chanted and made certain statements. Further, it is defense counsels understanding that these activities were monitored and recorded by law enforcement, and that there exists videotape recordings of those activities, and transcripts of the recordings. In addition, it is defense counsels understanding that this protest activity was allegedly directed at employees of institutions which use animals in research.

evidence will be admissible at trial, so that both defense counsel and the government can appropriately direct their investigations and preparation for trial. There are three issues, therefore, that defense counsel would like to bring to the Courts attention. First, to what extent is the subjective intent of the defendants relevant and admissible at trial? Second, to what extent is the reaction of the specific person at whom activity was

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directed relevant and/or admissible evidence at trial? And third, to what extent will the concept of strictissimi juris apply to this case.

A.

TO WHAT EXTENT IS THE SUBJECTIVE INTENT OF THE DEFENDANTS RELEVANT AND ADMISSIBLE AT TRIAL?

The language of 18 USC 43 requires a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation. The current state of law in the Ninth Circuit indicates that determining if speech is a true threat may rest upon whether or not an objective or subjective standard is used in determining the intent of the speaker. Fogel v. Collins, 531 F.3d 824, 831 (9th Cir. 2008). Violence and threats of violence are outside the protection of the First Amendment because they coerce by unlawful conduct, rather than persuade by expression, and thus play no

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part in the marketplace of ideas. In re M.S., 10 Cal.4th 698, 714 (Cal. 1995). However, the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Virginia v. Black, 538 U.S. 343, 359 (2003) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447, (1969).

a true threat. Black, supra, at 359 (quoting Watts v. United States, 394 U.S. 605, 708 (1969); United States v. Orozco-Santillan, 903 F. 2d 1262, 1266 (9th Cir. 1990). Prior to Black, this Circuit relied largely on the objective reasonable speaker test to determine whether a communication was proscribable under the First Amendment. (See, e.g. Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969) and Planned Parenthood of the Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058, 1074-75 (9th Cir. 2002) (en banc). Under

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this test, a communication was a proscribable threat if a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. Orozco-Santillan, supra, at 1262, 1265. In Black, however, the Court defined a true threat differently: "True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Black, supra, at 359-60, 123 U.S. 1536 (citations omitted). In Black, the Supreme Court ruled that a prima facie evidence provision prohibiting any cross-burning violated the First Amendment. The provision held that the burning of a cross, by itself, is sufficient evidence from which you may infer the required intent. See Virginia Model Jury Instructions, Criminal, Instruction No, 10.250 (1998 and Supp. 2001). The Court found that

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REQUEST FOR DETERMINATION ON SCOPE OF RELEVANT EVIDENCE AT TRIAL AND PROPOSED JURY INSTRUCTIONS Case No. CR 09-263 RMW

the prima facie evidence provision: [S]trip[ped] away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every crossburning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. Black, supra, at 365.

[The provision] does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim. It does not distinguish between a cross burning at a public rally or a cross burning on a neighbors lawn. [] The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut. Black, supra, at 366-67.

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In so ruling, the Court found the provision unconstitutional on its face precisely because it ignored all evidence necessary to determine whether an act (cross burning) was intended to threaten. In other words, if a provision ignores evidence of intent prima facie, then it is unconstitutional; contrapositively, a provision is constitutional if and only if it takes into account evidence of the speakers subjective intent. The Court further explored the possible consequences of failing to take into account the subjective intent of the speaker: The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. It is apparent that the provision as so interpreted would create an unacceptable risk of the suppression of ideas. quoting Secretary of State of Md. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. [] As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute and potentially convict somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect. Black, supra, at 365. In so holding, the Court provided further justification for the subjective intent test, for the lack thereof may chill constitutionally protected speech. As Justice Scalia, in his dissenting opinion stated: Where [the jury instruction as to the prima facie provision] has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before itincluding evidence that might rebut the presumption that the cross burning was done with an intent to intimidateor, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross. Black, supra, at 380 (emphasis added). Here, Justice Scalia opined that the jury must consider evidence as to the presence or lack thereof of the speakers intent, dissenting only to the pluralitys approach to the jury instruction as a statute rather than as simply a jury instruction. In addition to the four-Justice plurality and Scalias dissent, Justices Souter, Kennedy and Ginsburg agreed that the prima facie evidence
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provision rendered the statute facially unconstitutional because it effectively eliminated the intent requirement. U.S. v. Cassel, 408 F.3d 622, 632 (9th Cir. 2005) (emphasis added). Thus, eight Justices agreed that intent to intimidate is necessary and that the government must prove it in order to secure a conviction. Cassel, supra, at 633 (emphasis added). The Black decision has complicated the jurisprudence of the Ninth Circuits pre-Black adherence to the objective test. In United States v. Lincoln, the first Ninth Circuit case regarding true threats after the Supreme Courts decision in Black, the panel ignored the Black opinion altogether, and maintained the reasonable speaker test that had been previously adopted in the Ninth Circuit. U.S. v. Lincoln, 403 F.3d 703 (9th Cir. 2005). In United States v. Cassel, however, the Ninth Circuit addressed the impact of Black . In Cassel, Paul Kent Cassel lived, in early 1998, with his girlfriend (Anastasia Kafteranis) on

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property owned by her near Randsburg, California, in the Mojave Desert. The federal government owned several lots near Kafteranis property and sought to sell them. Cassel apparently liked his privacy, though, and proceeded with a campaign to dissuade any prospective buyers from purchasing the property. His efforts included approaching potential buyers with two aggressive dogs, and claiming many things, including that the surrounding area was inhabited by child molesters, drug users and witches, and that the local police were corrupt. Cassel succeeded

couple (the Goodins) did not bid on the property because, as Mr. Goodin testified, Cassel told him that if I [Goodin] tried to build anything on Lot 107, that it would definitely burn. He would see to that. That if I left anything there, it would be stolen, vandalized. He would see to that. Cassel, supra, at 625. As a result, Cassel was charged and convicted of interfering with a federal land sale under 18 U.S.C. 1860. On appeal, the Ninth Circuit vacated the conviction and remanded the case after finding that the jury instruction as to 18 U.S.C. 1860 omit[ted] a

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necessary element of the offense, a subjective intent [] requirement, and was therefore fatally flawed. Cassel, supra, at 635-36. The panel based this determination on the Black decision, holding that: A natural reading of [the Supreme Courts definition of a true threat in Black] embraces not only the requirement that the communication itself be intentional, but also the requirement that the speaker intend for his language to threaten the victim. [] Its holding thus affirms our own dictumnot always adhered to in our casesthat the element of intent [is] the determinative factor separating protected expression from unprotected criminal behavior. [] We are therefore bound to conclude that speech may be deemed unprotected by the first Amendment as a true threat only upon proof that the speaker subjectively intended the speech as a threat. Cassel, supra, at 631 and quoting United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir. 1987) (emphasis added). Not only does the panel conclude the Black decision affirms [their] own dictum, but that it is:

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[B]inding on us even though it is in tension with some of the holdings and language in prior cases of this circuit. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (holding that when a three-judge panel is faced with intervening precedent from a higher court that is "clearly irreconcilable" with a prior holding of this court, the panel is bound by the intervening authority). Cassel, supra, at 633. Not only is Cassel bound by Black to use the subjective testregardless of prior holdings and language of the Circuitit is the only Ninth Circuit decision to affirm that it is bound by the

no Ninth Circuit case has affirmed that it is bound by Black to use the objective test. In three cases following Cassel, the Ninth Circuit sidestepped the issue of whether to employ the objective test that had predominated pre-Black or adopt the subjective test that bound the panels conclusion in Cassel. In the next relevant Ninth Circuit case following Cassel, defendant Romo was accused of presidential threats under 18 U.S.C. 871(a). U.S. v. Romo, 413 F.3d 1044 (9th Cir. 2005).

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In Romo, the panel found the Cassel decision [left] untouched the reasonable person analysis for presidential threats because it did not address whether statutes like 18 U.S.C. 871(a) require intent. Romo, supra, at 1051 n. 6. Indeed, the Cassel panel found, We are not faced with the question of what effect our holding has on other specific statutes that we have previously held do not require the government to prove subjective intent. See, e.g., Roy v. United States, 416 F.2d 874 (9th cir. 1969). Cassel, supra, at 633 n. 9. Thus, the Cassel panel specifically exempted its holding from affecting future rulings as to the constitutionality of statutes such as 18 U.S.C. 871(a), thereby sidestepping the question of whether the objective or subjective test should be used. The next case heard by the Ninth Circuit that dealt with this issue chose not to address objective versus subjective tests by finding Stewarts statements were true threats, under either the objective or subjective true

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threat definition, and that, We need not decide whether the objective or subjective true threat definition should apply here. U.S. v. Stewart, 420 F.3d 1007, 1019, 1018 (9th Cir. 2005). Finally, the most recent case in the 9th Circuit that took up this issue found the speech in question failed to meet either test, thereby sidestepping the conflict. Fogel v. Collins, 531 F.3d 824, 831-833 (9th Cir. 2008). Thus, since Black, the Ninth Circuit ignored Black in Lincoln; sidestepped settling

Black for what it is (a defense of the subjective test), invoking binding precedent and taking into account the intent of the defendant in determining whether speech is protected by the First Amendment (Cassel, supra). The case for the subjective intent test is put forth strongly in Cassel, while the objective test finds no justification other than tacit acceptance in Lincoln, when the Court ignored Black.

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In addition to the relevant case law precedents set forth above, the actual text of the AETA marks it as a specific intent statute. In Romo, the text of 18 U.S.C. 871(a) invokes the objective test, though the panel did not rule one way or the other as noted above. The language of the AETA, on the other hand, calls for a subjective test itself, over and above the relevant case law precedents. The relevant portion of the offense under 18 USC 43 requires that, [F]or the purpose of damaging or interfering with the operations of an animal enterprise, [one must] intentionally [place] a person in reasonable fear of the death of, or serious bodily injury to that person [] by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation. 18 USC 43(1), (2)(B) (emphasis added). That is, one must intend to damage or interfere with the relevant enterprise and, in doing so, intend to place a person in reasonable fear by means of threats. The language, therefore, requires that the government prove, beyond a reasonable doubt, that the defendant possessed the specific intent to place a person in reasonable fear of death or great bodily injury. A subjective test as to Mr. Stumpos intent is, therefore, required under the AETA itself. In the matter before this Court, therefore, it is defense counsels belief that the subjective

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intent of the defendants is relevant and admissible at trial because, according to the current state of the law and the language of the AETA, such evidence is critical in determining whether their statements were or were not illegal under the AETA and/or protected by the First Amendment. B. TO WHAT EXTENT IS THE REACTION OF THE SPECIFIC INDIVIDUALS AT WHOM DEFENDANTS ACTIVITY WAS DIRECTED RELEVANT AND/OR ADMISSIBLE EVIDENCE AT TRIAL?

It is defense counsels belief that the jurys task is to determine whether or not a reasonable person would be placed in fear of death or great bodily injury by the defendants alleged action. Therefore, evidence of a particular persons fear or reaction is irrelevant and may be unduly prejudicial to the jurys determination.

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The language of 18 USC 43 requires the jury to determine whether the defendants believed that a reasonable person would have been placed in fear of death or great bodily injury as a result of their course of conduct. In the matter before this Court, it is defense counsels belief that the complaining witnesses have been told many thingsby the university (their employer), by law enforcement, by friends, etc.concerning the conduct of individuals connected to the animal rights movement in general. Specifically, there were allegations that cars and homes of researchers were fire bombed by individuals connected to the animal rights movement. (The defendants are not charged with fire bombing, nor is there any evidence that they knew of, participated in, or were in any way connected to any fire bombings.) These communications may or may not be true; however, because of these outside communications, the individuals may have been placed in fear

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not simply by the defendants alleged course of conduct but rather based upon the alleged conduct of other individuals connected to the animal rights movement about whom they have heard this secondhand information. Testimony by the complaining witnesses regarding their fear, however, is irrelevant to the jurys determination in this case. The jury must determine whether the defendants would have believed that a reasonable person would have been placed in fear by the course of conduct which

precluded from testifying regarding their fear or lack thereof. Further, if this Court allows testimony about each individual complaining witness fear, another issue arises; one of judicial economy. As soon as a witness is permitted to testify as to whether they personally were afraid, the basis of their fear becomes relevant. Exploring such basis would require extensive investigations into what information these individuals were provided by law enforcement, what information they received from the institutions that

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employed them, what training and education they had when they received that information, what action, if any, they took as a result of that information, and the reliability of the information they received, in order for the jury to determine the reasonableness of their fear. As a result, the trial would become a morass of evidence about what was communicated to the witness, under what circumstances it was communicated, and by what entity it was communicated. Any number of alleged actions by the animal rights movement in general which were known to the alleged victims will therefore become relevant and admissible and the jury will be required to determine whether the witness fear was based on the actions of the defendants, or, in part or in whole, on those other acts not committed by the defendants which the witness knew about. Such evidence would require an undue consumption of time and unnecessarily confuse the jury. (Fed. Rules of Evidence 403).

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Thus, one of the first issues which defense counsel respectfully requests this Court to resolve is a jury instruction in a ruling in limine on the scope of the admissible testimony of the alleged victims on the issue of whether or not their particular mindsets and the knowledge and experiences upon which those mindsets are based, will be relevant and/or admissible during the trial. C. TO WHAT EXTENT WILL THE CONCEPT OF STRICTISSIMI JURIS APPLY TO THIS CASE?

Another issue that has to be resolved is to what extent the concept of strictissimi juris applies to this case. Ms. Stumpo is charged with a violation of 18 USC 371, conspiracy. The government alleges that Ms. Stumpo was present with a group of individuals, each of whom was saying different things or doing different acts. The question thus presented is whether, if Ms. Stumpos position is that she had the intent only to exercise her First Amendment rights and did not have the intent to cause a reasonable person to fear death or great bodily injury, does the fact

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that someone else in the group might have the intent to cause fear mean that Ms. Stumpo may be held liable for that other individuals intent? Under the doctrine of strictissimi juris, an individuals association or agreement with other actors who engage in criminal activity cannot, on its own, serve as evidence of the specific intent needed to sustain a conspiracy conviction, when that association or agreement is founded upon a lawful purpose and is political in a way that warrants First Amendment protections. United States v. Spock, 416 F.2d 165 (1st Cir. 1969). The constitutional protections on expression demand that greater care be taken when drawing inferences from association with unlawful activity to the specific intent to further that unlawful activity. Id. at 173. It follows that a defendant who is party to an agreement to effect a lawful outcome through constitutionally protected expression, and who personally engages in lawful means to bring that lawful outcome

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about, cannot be proven to have the specific intent requisite for conspiracy solely on the basis of the unlawful activities of her associates. Id. at 173 (speaking of a document advocating illegal activity, there is a wide gap between signing [...] [the document] [...] and demonstrating ones personal attachment to illegality). To obtain a conspiracy conviction under 18 U.S.C. 371, the prosecution must prove (i) an agreement between the defendant and others as to the object of the conspiracy; (ii) specific

conspiracy by the defendant or one of his co-conspirators. United States v. Montour, 944 F.2d 1019, 1024 (2d Cir. 1991). The function of the overt act element is to require that the prosecution provide concrete evidence of the other elements (agreement and specific intent) of the conspiracy charge. Yates v. United States, 354 U.S. 298, 334 (1957). Since the overt act itself does not constitute the crime, legal acts and even constitutionally protected speech can satisfy the overt act element of the conspiracy crime. Id. at 334. Furthermore, it is not necessary

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that the defendant herself be implicated in the commission of the alleged overt acts for her to be found criminally liable for the conspiracy. United States v. Barrett, 539 F.2d 244, 249 (1st Cir. 1976). Where, however, an alleged agreement has multiple objectives and where some of those objectives involve the lawful exercise of constitutionally protected expression, an individual defendants specific intent to commit an unlawful act cannot be inferred merely from the overt acts, legal or otherwise, of her alleged coconspirators. Spock, supra, 416 F.2d at 173. Under the doctrine of strictissimi juris, therefore, if the scope of Ms. Stumpos agreement with her alleged indicted and unindicted co-conspirators included the lawful exercise of constitutionally protected expression, then any overt acts taken by her alleged indicted and unindicted coconspirators towards the advancement of their illegal ends cannot, on their own, be used as evidence of her

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The origin of strictissimi juris is significant: in 1961, the Supreme Court weighed the sufficiency of evidence used to secure convictions under the Smith Act, which criminalized membership in any group advocating the violent overthrow of the United States government.
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specific intent to further any criminal objective. As such, according to the doctrine of strictissimi juris, a heightened standard of evidence is required for proof of an individual defendants criminal intent in cases arising under these circumstances: Strictissimi juris applies only when the group activity out of which the alleged offense develops can be described as a bifarious undertaking, involving both legal and illegal purposes and conduct, and is, within the shadow of the first amendment. [citation omitted] When the ultimate objective of the group, of which the defendant is a member, is legal, but the means chosen to accomplish that end involve both legal and illegal activities, a court will apply strictissimi juris to ensure that the defendant was personally involved with the illegal activity of the group activity. United States v. Montour, 944 F.2d 1019, 1024 (2d Cir. 1991) (quoting United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972)).

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The Court announced that a conviction cannot be sustained without clear proof that a defendant specifically intend[s] to accomplish [the aims of the organization by resort to violence]. United States v. Scales, 367 U.S. 203, 229 (1961) (quoting Noto v. United States, 367 U.S. 290, 299 (1961)). That the statute requires a defendant be proven to have knowledge of illegal advocacy offers protection against blanket prohibition of association with a group having both legal and illegal aims, such prohibition being a threat to legitimate political expression. Scales, 367 U.S. at 229. In Noto, the defendant was a member of the Communist party, who spoke of the necessity of future violence and of anticipating a time when opponents would be shot. Noto, supra, at 290. This evidence was insufficient to support a conviction: the mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent

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action and steeling it to such action. Noto, 367 U.S. at 297. Lacking substantial direct or circumstantial evidence of a call to violence by the defendant, the Court reversed Notos conviction. Id. at 228. In a later prosecution under 18 U.S.C. 371, for conspiracy to interfere with selective service activities, the First Circuit held that where the alleged agreement is both bifarious and political within the shadow of the First Amendment [...] an individuals specific intent to adhere

subsequent unambiguous statements; by the individual defendants subsequent commission of the very illegal act contemplated by the agreement; or by the individual defendants legal act if that act is clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated. Spock, supra 416 F.2d at 173 (quoting Scales, supra 367 U.S. at 234). Defendant Spocks conspiracy conviction was reversed by the Court on the grounds that none of the three forms of evidence existed in the record. Spocks speech, limited to

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condemnation of the Vietnam War and the draft, and his stated hope that his words would give young men courage to take active steps in draft resistance, both failed to provide sufficient evidence of the specific intent needed for conviction. Spock, supra 416 F.2d at 178-9. Similarly, his presence at a demonstration where illegal acts were perpetrated by others than him failed to support a conspiracy conviction. Id. at 179. In its latest discussion of the matter, the Supreme Court extended the doctrine of strictissimi juris to overturn a judgment of civil liability for damages resulting from a boycott of white merchants in Claiborne County, MS, which was tainted by violent and criminal activities. NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). Following the logic of Noto-Scales, the Court rejected the contention that mere attendance at NAACP meetings and participation in the planning of the boycott was sufficient to ground liability for subsequent criminal activity

13 14 15 16 17 18 19 20 ample evidence of his active participation in the boycott and his delivery of public addresses 21 22 23 24 25 26 27 28
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associated with the boycott. Id. at 924. The general doctrine of strictissimi juris set out by the Court is that "[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims." Id. at 920. Evidence of intent is to be judged "according to the strictest law." Id. at 919. As such, defendant Charles Evers could not be held liable for damages resulting from the boycott or the violent and criminal aspects of the boycott, despite

which could be interpreted as advocating the use of violence. Id. at 927. The Court relied on its prior ruling that abstract advocacy of violence remains protected under the First Amendment except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 928 (quoting Brandenburg v. Ohio, 395 US 444, 447 (1969) (reversing a conviction of a KKK leader for threats made conditional on the continued suppression of the white race)). Addressing the evidence presented by Evers

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inflammatory but constitutionally protected speeches, the Court concluded [i]f there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence. But any such theory fails for the simple reason that there is no evidence -- apart from the speeches themselves -- that Evers authorized, ratified, or directly threatened acts of violence. NAACP, 458 U.S. at 929. Thus, neither association with criminal conspirators nor abstract advocacy of the possible need for violence provides sufficient evidence of a specific intent to further a criminal objective in such cases implicating the First Amendment. Importantly, the Third Circuit, in its recent decision upholding the convictions of two codefendants under the predecessor to the AETA, the AEPA, acknowledged that the doctrine of strictissimi juris must apply. United States v. Fullmer, 584 F.3d 132, 160-161 (3d Cir. 2009).

13 14 15 16 17 18 19 20 might be punished for his adherence to lawful and constitutionally protected purposes, because 21 22 23 24 25 26 27 28
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As such, where, as the Spock Court says, the agreement in question is bifarious and where one object of the legal part is the constitutionally protected right of freedom of expression, then it is a fundamental error to apply the panoply of rules applicable to a conspiracy having purely illegal purposes. Spock, 416 F.2d at 173 (emphasis added). Use instead of the doctrine of strictissimi juris protects against the danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to violence,

of other and unprotected purposes which he does not necessarily share. Scales, 367 U.S. at 300. As such, Ms. Stumpo requests a jury instruction which clearly sets forth the standards which must apply to the conspiracy charge.

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II.

PROPOSED JURY INSTRUCTIONS

In order to move this case effectively and efficiently toward a trial posture, defense counsel requests that these three fundamental issues should be resolved at this time in the proceeding. As such, defense counsel proposes the following drafts of potential jury instructions: 1. In order to find Ms. Stumpo guilty of the crime charged, the prosecution must prove beyond a reasonable doubt a. that Ms. Stumpo engaged in a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation; b. that this course of conduct was such that a reasonable person would understand such threats, acts of vandalism, property damage, criminal trespass, harassment,

13 14 15 16 17 18 19 20 or great bodily injury as a result of Ms. Stumpos actions and/or speech. 21 22 23 24 25 26 27 28


REQUEST FOR DETERMINATION ON SCOPE OF RELEVANT EVIDENCE AT TRIAL AND PROPOSED JURY INSTRUCTIONS Case No. CR 09-263 RMW

or intimidation to constitute a threat of death or serious bodily injury; and c. that Ms. Stumpo specifically intended such threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation to be taken by __________ as a threat of death or serious bodily injury. 2. In order to find Ms. Stumpo guilty of the crime charged, the prosecution must prove beyond a reasonable doubt that a reasonable person would believe that he/she would be subjected to death

3.

Whether or not an individual witness felt that they were threatened with great bodily injury or death is not relevant to your determination of a. whether or not a reasonable person would have interpreted this behavior as a threat of death or great bodily injury and b. whether or not the individuals to whom the behavior is attributed believed that they were a threat of great bodily injury.

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4. In order for you to find Ms. Stumpo guilty of the crimes charged, the prosecution must prove beyond a reasonable doubt that Ms. Stumpo engaged in an intentional course of conduct, involving threats, acts of vandalism, property damage, criminal trespass, harassment or intimidation which she believed would have placed a reasonable person in fear of death or great bodily injury. U.S. v. Spock, 416 F.2d 165 (1st Cir. 1969). 5. An individuals association or agreement with actors who engage in criminal activity cannot on its own serve as evidence of the specific intent needed to sustain a conspiracy conviction when that association or agreement is founded on a lawful purpose and is political in a way that warrants first amendment protection. U.S. v. Spock, 416 F.2d 165 (1st Cir. 1969). 6. The unlawful activity of a co-conspirator may not be used to prove the specific intent of Ms. Stumpo if Ms. Stumpo entered into an agreement to affect a lawful outcome through

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constitutionally protected expression and/or personally engaged in a lawful means to bring that lawful conduct about. Respectfully submitted: Nolan, Armstrong & Barton, LLP Dated: April 30, 2010 ______________/s/________________ Thomas J. Nolan Emma Bradford Attorneys for Defendant, Adriana Stumpo

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