*1 property the funds were still the United States America private corporations. v. Stop Huntingdon Cruelty Animal
CONCLUSION USA, Inc., Appellant, We understand the frustration of the United States of America plaintiffs attempting who are to recover on judgments they have secured. Neverthe- v.
less, respect the we must Act’s strict limi- Conroy, Appellant. Jacob attaching executing upon tations on 06-4211, 06-4296, 06-4339, 06-4436, Nos. of a foreign assets state. 06-4437, 06-4438, 06 - 4447. reasons, foregoing For the we reverse judgment the district court’s Appeals, and vacate all United States Court of orders, of the associated as well as its Third Circuit.
opinion confirming those orders. Argued Jan. 2009.
Opinion Filed: Oct.
UNITED STATES America
v. FULLMER, Appellant,
Darius
United States of America
v. Stepanian, Appellant,
Andrew States of
United America
v. Kjonaas
Kevin Kevin Jonas a/k/a a/k/a Fareer,
Steve Shore Jim Kevin a/k/a
Kjonaas, Appellant,
United States America
v. Harper, Appellant,
Joshua
United States America
v. Gazzola, Appellant,
Lauren
H. (Argued), Louis Sirkin Sirkin Piñales LLP, Cincinnati, OH, & Schwartz for Ap- pellant Lauren Gazzola.
Robert G. Stahl (Argued), Laura K. Ga- siorowski, Sarokin, Stahl Farella & West- field, NJ, for Appellant Kjonaas. Kevin Peter Goldberger Ardmore, (Argued), PA, Appellant for Harper. Joshua Obler, Robert A. Lawrenceville, NJ, for Appellant Darius Fullmer. their convictions for PA, challenge Harper Hetznecker, Philadelphia, and
Paul J. a telecommunications de- conspiracy to use Stepanian. Andrew Appellant for threaten, abuse, harass. vice Cuker, Williams, Erba, II, & F. Andrew PA, Appel- for Philadelphia, appeal Berezofsky, issues this overarching Cruelty Animal Stop violates the First lant the AEPA whether are USA, Amendment, Inc. there was sufficient whether of the vari- to convict Defendants evidence Otis, Haveson, Haveson & K. Hal them, challenges against charges ous Con- Princeton, NJ, Jacob Appellant for we find Because jury instructions. roy. AEPA unconstitutional is neither George (Argued), Moramarco Glenn J. as-applied face, nor unconstitutional on its Attor- Leone, United States Assistant S. Gazzola, SHAC, Conroy, Ste- Kjonaas, Building & Court- Federal ney, Camden Fullmer, will af- we panian, NJ, Camden, Appellee. house, for their convictions firm for Con- Strugar, Esq., Center Matthew addition, we find that the AEPA. In violate Guild, Lawyers Rights, National stitutional to convict sufficient evidence there Association, Lawyers First Amendment involving charges on all inter- Defendants York, NY, Curiae-Appellants. Amici New flaw Finally, we find no stalking. state instructions, and we will therefore jury FISHER, Before: FUENTES the District Court Judgment of affirm the DITTER,* District Judges Circuit respects. in all other Judge. *6 I. COURT OF THE OPINION prin- the two setting forth begin by We FUENTES, Judge: Circuit lengthy by the implicated cipal statutes Fullmer, Andrew Darius Defendants of The version this case: facts of Harper, Kjonaas, Joshua Kevin Stepanian, time of the conduct AEPA in force Stop Gazzola, Conroy, and Jacob Lauren part in relevant provided, at issue (“SHAC”) col- Cruelty Animal Huntingdon Whoever— for their convictions lectively challenge (1) foreign com- Enter- or Animal travels in interstate to violate the (“AEPA”), to be used the merce, U.S.C. or causes Act or uses Protection prise or for- (2002). interpretation facility interstate Notably, any our mail or § 43 of caus- impres- purpose for the of first commerce eign is an issue of this statute disruption to the function- this, appeal.1 court of any, ing physical or circuit sion in enterprise; an animal ing of Gazzola, Conroy SHAC, Kjonaas, (2) damages or causes the intentionally conspir- their convictions challenge also (including animals any property loss of stalking, as well interstate commit acy to records) animal enter- by the used or stalking. substantive counts as three so, to do conspires Gazzola, Conroy, prise, or SHAC, Kjonaas, Finally, * parties are Jr., against Ditter, third intimidation District William J. Honorable enterpris- Court for with animal District Judge for the United States related to or associated sitting Pennsylvania, District of the Eastern violations es are themselves substantive by designation. AEPA. in 2006 to make Congress revised AEPA harassment, vandalism, threats of clear punished provided
shall be as for in ditions inside a Huntingdon laboratory in (b). subsection the United Kingdom. The footage, which depicted abuse, 43(a)(l)-(2) animal (2002). public § became 18 U.S.C. The inter- when it was used in a stalking provides, program, state television statute in relevant igniting protests part against Huntingdon by a number rights of animal organizations. At Whoever travels in interstate or foreign time, about the same Stop Huntingdon kill, commerce ... with the intent Cruelty Animal harass, was formed in injure, the United place or under surveil- (“SHAC-UK”). Kingdom kill, harass, organiza- lance with injure, intent to tion’s mission or intimidate is to close person, Huntingdon another labo- of, of, ratories.2 course or as a result such travel places person in reasonable fear of Immediately after SHAC-UK formed in of, the death bodily serious injury to, November organization publish- or causes substantial emotional distress ed a newsletter that listed the names and person, to that member the immedi- addresses of the Huntingdon directors family ate ... of that person, or the Kingdom. United Following publi- spouse or intimate partner of that per- newsletter, cation of the animals rights son ... punished shall be provided in protestors subjected di- 2261(b) section of this title. rectors to an ongoing campaign of harass- 2261A(1)(2000). § 18 U.S.C. ment, including vandalizing their homes and cars.
A. February the Chief Operating Huntingdon Life Sciences (“Hunting- Officer and Managing Director Hunting- don”) is a corporation research per- don, Cass, Brian was physically assaulted testing forms for companies seeking to by three masked individuals in front of his bring products their to market. The test- home in England. Cass suffered cracked ing that Huntingdon provides to its clients ribs, lacerations, several and a four-inch mandated regulations laws and *7 gash on his head required nine the United States Europe and to ensure stitches. David Blinkinsopp, who had the safety efficacy and pharmaceuticals, of been identified in video footage of SHAC- agricultural products, veterinary products, protests UK in front of Huntingdon, was implants. medical Huntingdon has convicted of the assault. The remaining laboratories, three two in the King- United two assailants were never identified. dom and one in Jersey. New All Hunting- don laboratories use animals as test sub- SHAC-UK’s campaign evolved to in- jects. Approximately eighty-five percent companies clude and individuals who were of by the animals Huntingdon used are associated with Huntingdon, sup- such as mice, rats and and the remaining fifteen pliers and addition, customers. In SHAC- percent is composed of species, other in- began UK to Huntingdon’s target share- fish, cluding dogs, monkeys, and guinea holders, demanding that the shareholders pigs. sell their stock or face 1990s,
In the late an individual posing twenty-four as hour demonstrations at their a laboratory videotaped technician the con- homes. Because the laws the United 2. The activities of are targeted SHAC-UK relevant to Defendants in this case. SHAC- only this case they explain to the extent that UK party is not a to this action. the state of perceptions mind and of those action, following the stated SHAC direct publish to companies require Kingdom website: its their sharehold- on of and addresses names its financial ers, Huntingdon relocated of the operate within boundaries We in an effort to States law, support to the United those recognize base but then SHAC shareholders. its con- protect operate outside the who choose to States in the United a branch system. formed legal fines branch Jersey-based the New target time and time Big business has shown Jersey branch of The New Huntingdon. ethics, lack of concern again their in this Defendants is one SHAC their focusing their attention on instead action. Often, simply targeting said profit. However, as proves fruitless. business
B. successfully have ground activists above pillars financial targeted [Huntingdon]^ multi-faceted campaign SHAC’s activists have support, underground companies that targeting approach, its [Huntingdon]^ pocket- targeted too indirectly involved with directly were individuals as well books. Unidentified people who Huntingdon, as well as Li- the Animal underground cells of Because of companies.3 for those worked and the Earth Liberation beration Front record, only a we recount length of in economic sabo- engaged Front have incidents sample of the representative and their associ- [Huntingdon] tage of particular, this subject of case. are the ates. of SHAC’s general content discuss we activity directly coordinat- their time spent and the have also They
website website, including liberating through intervening animals ed individuals. specific [Hunting- directed inside protests who are slated die from Animals have been liberated
don]. SHAC Website well as the laboratories breeders as themselves. tool is its organizing primary SHAC’s ac- organize any such SHAC does website, coordi- which members through who any knowledge of or have tions publishes It also protests. future nate they happen, will when doing them or previ- that have protests about information sup- encourage[s] people [SHAC] but place. ously taken happens when it action port direct page dedicated includes a The website in it. may participate those who action,” all which of “direct concept *8 (J.A. 775.) at protest a type concede is parties organiza- the posted often The website activity in this case. illegal includes which lauded “accomplishments,” tion’s the use of position on regard to its With York, stock which facilitated of New targeted at Bank SHAC The record reflects that when Hun- companies by em- investors purchases and their American different ten least campaign Quilcap, England; during the course of its ployees tingdon based in was companies include Huntingdon. company; These management close fund investment Inc., facilitated Spencer Edwards which Marsh, Inc., bro- provided insurance which stock; Communi- Huntingdon Focal Chiron, trade Huntingdon; a bio- kerage services cations, Huntingdon’s telephone and internet client of Hun- company and pharmaceutical Inc., Stephens, an invest- provider; service Touche, Huntingdon’s tingdon; Deloitte and money' to banking company loaned ment Schwab, auditor; a stockbroker and Charles Laboratories, pharma- a Huntingdon; Forest Huntingdon. client; Huntingdon company and ceutical legal illegal protest activity. both and The The SHAC posted piece website also a included, illegal activity among “Top called the other Terror Tactics” that originally was published by an things, Huntingdon organiza- a break-in at the lab in tion that defends the use of animals in Jersey, during protestors New which medical testing. research and With its windows and 14 beagles,” broke “liberated standard disclaimer about SHAC not orga- car; overturning in addition to a worker’s nizing illegal activity, re-published detonating a bomb” in “stink the Seattle the list on its website. Some of the tactics investor; destroy- office of a graffiti, included posters, abusive and ATMs, windows, Bank ing of New York houses, cars, on stickers in neighbor- and property; yacht other sinking and a owned targeted individuals; hoods of invading of- by the Bank of New president; York’s fices, damaging property, and stealing doc- launching repeated “paint attacks” uments; chaining gates shut blocking New York offices of a Huntingdon inves- gates site; with old trap cars to staff on tor; “rescuing” dogs and and ferrets from physical assaults against targeted indi- a Huntingdon breeder farm. viduals, as well partners, as then.' including posted “anonymous” website also spraying cleaning fluid eyes; into their successful, illegal, bulletins but smashing windows in houses when the oc- activities. One such bulletin stated home; cupants are flooding houses with a hose attached to an tap outside inserted 30th, night, August Late last paid we through a letterbox or window while the Armstead, Rodney
visit to the home of home unoccupied; is vandalizing personal MD took out and two his front win- locks, by gluing tires, vehicles slashing ... gave something dows him to labor pouring exterior; paint on the smashing Day over this Labor Rodney weekend. personal vehicles with a sledgehammer agent serves as an officer and of service targeted while the inside; individual for “Medical Diagnostic Management, cars, firebombing sheds garages; Inc.,” scummy little company [associat- bomb instigate evacuations; threats Huntingdon]. Any ed with ties with threatening telephone letters, calls and in- [Huntingdon] yield or its executives will cluding injure threats to or kill target- only headaches and a mess to clean up. individual, ed as well their children and (J.A. 935.) partners; abusive telephone The name and calls home address and let- ters; ordering goods of Dr. Armstead services followed. This bulletin targeted address; individual’s name prefaced SHAC’s statement that it arranging for an undei'taker to collect was “excited to upswing see such an target’s body. list, Following the against action Huntingdon and their co- stated, SHAC website get- “Now don’t go horts. From the unsolicited direct action (J.A. 780.) ting any funny ideas!” calls, e-mails, phone pro- faxes and Keep up good tests. work!” Similar The website had a series of links dedi- bulletins included photographs of extensive cated to educating activists on how to *9 vandalism at the homes of people indirect- investigators. evade These links were en- ly Huntingdon, affiliated with such as em- titled, “Ears Eyes Everywhere,” and ployees of Bank of New York. These bulle- “Dealing Interrogation,” with “When an always tins almost contained a disclaimer Knocks,” Agent “Illegal Activity.” In that illegal activity “all by anony- is done website, these sections of the ad- SHAC mous activists who have no relation with protesters vised its to say “never anything (J.A. 1233.) SHAC.” at phone, over the email in your or house the way encouraged Another that SHAC authorities the want you wouldn’t car that civil disobedience was of electronic use sensitive need to discuss you If hear. to the fea- through its “Investor of Week” location. information, it in a remote do ture, highlighted company a associ- which information with sensitive anything Burn by publishing the with ated download www.pgp.com and it.... Visit on information. SHAC company’s contact protect to program encryption an email advantage to “Take supporters told its 1512.) (J.A. at conversations.” your email with toll free phones! Especially pay privacy,” “pretty good “PGP” stands 788.) (J.A. at website numbers! The [sic]” generally device encryption that was a fax for their a link to black provided also conversations e-mail protecting at effective Alternatively, the website use. personal (J.A. at 3095- monitoring. outside from just could use black supporters noted 99.) from to data also used erase PGP is a your target’s fax machine “give to paper found on The software was hard drives. (Id.) money ... or ink!” The for its run de SHAC’s computers nine eight supporter a could explained how website Defen- where three headquarters facto that it would phone his number so block lived. also dants line’s telephone fax or appear on the addition, the web- identification. caller website, also invited Through SHAC its prevent targeted to the how explained site in electronic civil engage to supporters its e-mails, blocking from company’s servers vari- Huntingdon and against disobedience encryption link devices provided a to Hunting- companies associated ous the sender. mask involves civil disobedience don. Electronic coordi- specific example of SHAC’s One large a number campaign by a coordinated civil disobedience of electronic nation websites, e-mail inundate of individuals “shacuse@envirolink.org” e-mail from of a servers, telephone service 26, 2003. on October was disseminated civil disobe- company. Electronic targeted “Elec- subject line of the e-mail was fax- “black the use of also includes dience Disobedience,” advised and it tronic Civil piece es,” faxing black repeatedly following that on supporters SHAC fax machine to exhaust the same paper to a link provide would day, SHAC’s website sponsored supply. ink toner or where website the SHAC-Moscow cam- civil monthly disobedience electronic taking will “electronic civil disobedience be Monday every on first paigns “partic- stated The e-mail place.” supporters reminded its month. SHAC taking and that mandatory,” ipation is illegal, civil disobedience that electronic civil dis- coordinated electronic part if only participate should supporters so ... halt obedience, “help would supporters and are King Martin Luther they “are like partic- medium for web important ever if ... or consequences ready to suffer Huntingdon.” companies sponsoring ular fight an- want to live supporters] a loud [the “send[] would also Participation injunctions or silly electronic disobedi- day, message civil that no other do campaign can politicians that cannot derail computer a public from crooked ence ” 2615.)4 (J.A. at 835.) Huntingdon.” (J.A. close traced.... be lauding website, the “liberation” structure.’’ After SHAC's newslet- to the In addition plan you very beagles from “the group of against support action provided for direct ter below,” encouraged read- the newsletter a detailed see Huntingdon. One issue featured fight.” up map to “stand inviting ers to use Huntingdon’s physical plant, map of *10 1704-05.) (J.A. at your enemy's physical know readers “to trial, At government presented evi- job. afloat. Not an easy aAs trained cyberattacks against dence that the Hun- accountant chartered is Baker skilled at tingdon the company’s computer pulling caused the financial strings of companies systems to crash on separate two he is in charge occa- of.... currently He sions, $400,000 resulting business, in lost works out of a NJ office called Focused $50,000in staffing costs to repair the com- Healthcare Partners LLC' —which acts puter systems and bring online, general them back as a partner for healthcare $15,000 replace costs to computer startups ... or failing labs like Hunting- equipment. don .... Baker has been essentially re-
duced scrambling full time to save Against Protests Individuals Huntingdon. He nothing has going else for him. If [Focused Healthcare Part- One of strategies SHAC frequently is the ners] vehicle he uses to support employed target employees Huntingdon, [Focused Healthcare Part- Huntingdon and companies, affiliated as company ners] we must dismantle. family well as their members. To accom- (J.A. 937.) at plish this goal, posted names, SHAC addresses, home phone and home numbers posted page second that was of the organization’s individuals on the similar, this one entitled “TARGET: Fo- website. posted SHAC also bulletins (J.A. cused Health Care Partners.” at about what happened at protests, in- 949.) page This listed the names and cluding acts vandalism committed by home addresses of several officers and em- protestors. ployees of Partners, Focused Health Care including Andrew Baker. It also listed his
1. Andrew Baker5 wife’s name. Andrew Baker is the Chairman of Life frequent There were protests at Baker’s Research, Sciences a holding company for home, including a painting of Baker’s like- Huntingdon. Baker and his fami- ness on the sidewalk in apart- front his ly began receiving mail phone calls at ment building with a through cross his his home in New York which he character- face. After one of these protests, the fol- ized “very as “very abusive” vulgar.” lowing post appeared on the SHAC web- protest activity corresponded site: posting of following on SHAC’s web- Forwarded from N.Y. activists part site: the N.Y. Mayhem” “March events:
“Target: Andrew Baker”:
If there you is one man on whom Despite winds, rain, could driving and cold place the most [Huntingdon’s] blame for weather 75+ activists gathered at [ad- crimes since it is him. For the dress redacted] to the home of years last four since he watched little Andrew Baker CEO Huntingdon. dogs getting punched face, in the Baker Andrew Baker is at top of our put has his all into keeping Huntingdon “SH&)%;!” list for his in trying lead protests against 5. The ogy Andrew Baker are Department dis- Huntingdon; Darioush example cussed here as an way Dadgar, a Vice Huntingdon; President at targeted Huntingdon Auletta, which SHAC employees. Carol Program Director of Manage- There were Huntingdon several other employ- Bibi, Huntingdon; ment at Mark experiences, ees who similar Counsel; had including Kushner, General and Theresa Jonassen, Henning who worked the Pathol- Huntingdon. veterinarian
143 924.) (J.A. Later, following post the at closure. from certain Huntingdon save on SHAC website: appeared the angriest largest the and This was you and Andrew protest.... days aboveground activ- anonymously Sent “sci- management and your all senior No- [V]ery in late on ists the US.... in what have have no idea we 9th, ence” staff of An- we visited the home vember [sic], Murderers, lairs you! Baker, for store and drew CEO thieves, to be perverts deserve terrorist, at [ad- most violent American future In the near as such. spray painted treated mes- We redacted]. dress stripped gutter in the you we see when “Huntingdon SCUM” sages like respect, riches and fabricated your of all garage, all over the “PUPPY KILLER” spit! is our you get will only house, door, the handout wall the wooden around front, neighbors so that his sidewalk in 922.) (J.A. protes- testified that at Baker person kind of owns this will know what daughter’s New targeted his tors also very like to make it clear house. We’d that vandals He stated apartment. York This only warming up. that we’re scum- apart- her front door of the “plastered” bag is not here. welcome ... de- pictures posters ment “with (J.A. 2834.) 927.) at (J.A. death.” picting [his] post The was attributed at “ALF,” the “Animal Liber- acronym an later, website the SHAC A few weeks ation Front.” Bloody entitled “Baker’s page included a 923.) (J.A. page The Bungalow.” trial, that the in At testified house Baker run, hide!” warned, you can’t can but “You three Angeles has been attacked Los Ange- of Baker’s Los photos and included first during He the times. testified street, as the as well home from the attack, gate les protestors kicked the phone and home door, street address complete entrance, broke the front the street fol- included the page also number. During the sec- and broke windows. two commentary: lowing attack, broke a window protestors ond (as bomb threw a smoke garage if in the So, Andy is bi-coastal apparently attack, pro- tell). third During to the inside. addition you couldn’t wall, and tile over rocks he testors threw apartment penthouse million dollar house, ([ad- top and sides of hitting the upper NYC’s Westside owns on and doors. including windows redacted]), a sun- Baker also has dress Angeles. home Los ny California Sally Dillenback Plaza on This choice location Sunset attrac- the number one Drive should be the senior executive Sally Dillenback is Inc., Hol- rights Marsh, activist’s any on animal tion office Dallas star-map. lywood provid- brokerage company insurance Huntingdon. She million testified ed services to is a redacted] number [House learned that early she of a hill top at the located dollar home 2002, Dil- In March targeted Marsh. give had LA. Its small entrance looking over after the SHAC website a small lenback checked being appearance a false about information personal learning that abode, drapes it back down but there. When posted employees had been cur- floors. The mountainside several website, her in, she saw that viewed she Andy when is not occupant, rent in- posted, been had redacted], pampered personal information Baker’s [name her husband and of her cluding names liking it who rumor has took stepson address, children, as their home as well infamous cocaine. of LA’s to some *12 school, her children’s the name of this e-mail “devastated” her. She make, plate model and license of their further that during period testified this vehicle, church, personal the name of their time, purchased her husband a semi-auto- country and the name of the club where weapon matic and that seven-year-old her they were members. son twice brandished a kitchen knife while inside the house in an effort protect
Shortly after the information appeared family. himself and the website, on the SHAC Dillenback testified family began receiving that her phone initially After Dillenback testified re- calls, “angry often belligerent,” day and garding her son’s use of the knife at her night, as well as a “tremendous” vol- deposition, following posting, attrib- ume of mail. Dillenback testified that one activists,” uted to “TX appeared on morning, family her awoke to find SHAC website: pictures of mutilated had animals been Saturday, On December activists home, glued to the sidewalk in front of her paid holiday Dillenback, visit to Sally as well the exterior side wall of her head of Dallas Marsh office. She was time, home. At following the same surprised, finding working her on her posted was on the SHAC website: family.... Christmas tree with her Con- anonymously received on March 10: trary Sally’s testimony sworn at her night Last the homes of Dallas Marsh deposition, her son did not run for a employees Rogan Sally Michael Dil- kitchen knife and to hide when he saw lenback were visited activists. Mr. Instead, the activists. he and his sister Rogan’s garage plastered was quite seemed signs interested stickers puppies of mutilated such as appeared to be trying to read them from company those his insures. Mrs. Dillen- across the street. stickers, back’s side was covered in wall Christmas, Merry Sally. Take a mo- as was her mailbox. ment to think dogs, of all the like the Let the stickers serve to remind Marsh your home, one who shares who will be employees and neighbors their that their spending cong- Christmas their own paid blood, homes are for in the blood of ealed blood and Huntingdon, feces at innocent animals that are killed in labs part your thanks in company’s [to] in- like Huntingdon. Every day that Marsh surance. Huntingdon, they insures insure death. (J.A. 1271.) at (J.A. 1292.) at Dillenback testified that Dillenback testified that protests incident, after this she was “sickened and stopped early 2003, when Marsh terrified,” that her children were stopped providing brokerage insurance scared, especially youngest child who Huntingdon. services to Notably, years was seven old the time. Marsh quoted SHAC website a Financial Times provided security 24-hour at her home article explaining that dropped Marsh had following this incident. as a client on December Dillenback also received an e-mail that perceived she as a direct threat to her
youngest son. She testified that the e- S. Marion Harlos mail asked how they she would feel “if cut open my son ... and poison filled him with Marion Harlos heads the San Antonio way [Huntingdon] doing Seabury Smith, to office of a subsidiary ” (J.A. 3004.) Marsh, animals.... Dillenback, She testified Inc. As with she Then, A.M., protests her house. watching headquarters corporate from learned morning, on the nine activists were protests began. One targeted for had been she website, home ad- listed her Harlos’s home and were which outside arrested *13 week, number. Within phone third-degree stalking. with The charged dress and Harlos’s office. at was the arrests and there website announced SHAC and threw in the door Protestors “bashed” police to call the local urged protestors its scream- the office while across pamphlets pro- in Texas to demand department your on of death “You have blood ing, release. testors’ live,” ‘You you know where fingers,” “We “petrified” she was Harlos testified that find and will night,” at “We sleep cannot children, who were for her frightened and 2993.) (J.A. Seabury and Smith at you.” (J.A. play outside. longer permitted no for the security guards hired subsequently 2995.) fear testified her She also at Antonio office. San stemmed, knowledge her part, in from re- protestors that the testified Harlos to others who had happened had what later. a few weeks to the office turned SHAC, physical targeted by including been stopped most security guard Although the continued to tres- The attacks. activists inside, made it protestors, one injunction despite an property, on her pass “Pup- screaming, throwing pamphlets and permissible was intended to limit the you live.” killer,” know where and “We py protests. Harlos testified bounds 2994.) (J.A. protest was memorial- at This profound had a effect on protests website as follows: on the SHAC ized life, family, ulti- and the life of her her am, visit- 11:30 5 activists Today around to a new home. mately forcing her move ... and office Antonio Marsh ed San Dillenback, testified with Harlos As lobby. access to the gained Marsh ended its ceased when protests security guard bell and a They rang the relationship Huntingdon. business answered, attempt an one made activist way got half guard in get past Harper Robert k. three to throw two or enough in. It was flyers into the dozen anti property broker Harper Robert is a cubi- landing into the scattering air April his Boston office. Marsh’s screamed activist[s] All of the cles. web- on the SHAC appeared address home stop [until] killer” and “we won’t “puppy short- site, began home protests at his they Huntingdon”. As left you drop also en- protestors ly thereafter. prom- they banged on windows activities, such as harassing in other gaged your at time we will be ised “next mail-forward- unauthorized submitting an HOME”. Postal Ser- to the States ing order United 1282.) (J.A. at for cars or advertisements posting vice protest, this that after Harlos testified tickets, home listing Harper’s concert at her receiving phone calls began she 2002, activists Day On Father’s number. that some- night. at stated late She home door. The on his front paint red threw asked, you “Are scared? the caller times on appeared following post subsequently be puppies should you think Do website: 2994.) (J.A. Protestors, scared?” anonymously: Received conceal and masks to wearing bandanas I Harper. [D]ay Rob Happy Father[’]s faces, a car outside her often sat in their you gift[.] liked our hope 4:00 A.M. and 6:00 between residence (sic) Gazzola, case, mourning In the wee hours of the a Defendant in this demonstration, Boston Employee, present shouting on June Marsh this bullhorn, Rob address into a [home redacted] early Day gift Father[’]s received police Where were the when a [Hunting- A forget. gallons that he will never few got flipped car don] worker’s over his paint of red were thrown all over Har- driveway? police Where were the when per’s steps front and door. This left the a Marsh all executive had his windows in a huge pool front of his house caked smashed and his house covered in red paint. of red paint Chicago? And where were the *14 Harper responsible Rob for 500 ani- police your when house was covered in dying [Huntingdon] today mals within paint red a ago? They few weeks can’t long and as Marsh has ties with protect you. injunctions stop Your can’t [Huntingdon], target. Marsh will be a always us. way We’ll find a around any goes company This also other they whatever at throw us. that has times with Hun- business [sic] (G.E. 4006; 2985; Appel- J.A. at 2980 &
tingdon— 65-66.) lee’s Br. at Harper testified that they pay will for it. days this was “one of the worst of [his] There will be no rest for these murders. (J.A. 2980.) life.” at He feared that [Huntingdon] will be closed. someone would “throw a molotov cocktail” house, into the or that someone would This action is to the dedicated 500 ani- (J.A. physically family. assault him or his mals that were murdered inside of 2981.) contemplated moving at He today. [Huntingdon] quitting job, his protests stopped but the Love, when Marsh ended its business relation- The Animal Liberation Front ship Huntingdon. with (J.A. in (emphasis original).) at 1225 Harper pro- testified after these c. workday began, tests his was “consumed” The Individual Defendants checking
with website. He tes- SHAC, In addition to this case involves tified that he became aware of pro- other the following individual Defendants who targets, including tests and other phys- participated protest activity on behalf of ical assault of Brian Cass the United organization. Kingdom, as well as protestors destroying vehicles. He stated that him this made Kjonaas 1. Kevin feel “vulnerable” and “concerned for his Kjonaas Kevin family,” was the angry helpless as well as be- President of Kjonaas Somerset, cause his SHAC. lived at profoundly disrupted. life was so SHAC’s (J.A. 2979-80.) Jersey, New headquarters at with two co- Defendants, Lauren Gazzola and Jacob 9, 2002, August On was at work Conroy. when a occurred at his home. His him, crying Kjonaas’s
wife called and frantic. He campaign began work on the trial, arrived home to find his wife and two- the United Kingdom. gov- At year-old upset. protestors son out- played Kjonaas ernment a speak- video of screaming “puppy ing Rock, side were killer” and at workshop a in Little Arkan- threatening sas, burn the house down. A origins about the campaign SHAC’s played video at trial showed that against Huntingdon. Lauren He described a ser- any financial having Incorporated back England, dating campaigns ies of Huntingdon will mean connections to efforts. inspired SHAC’s lines, legal up phone flooded e-mail both blocked incorporated campaigns Those mailboxes, demon- systemse various [sic] tactics to shut down illegal offices, He described and inside of enterprises. strations outside animal-related protestors during protests [sic] which at the homes of the CEO’s demonstrations targeted surrounding company Directors.... fences down tore to “li- facilities, buildings and broke into 2861.) (J.A. trial, Stephens At em- at re- kept inside. He the animals berate” testified that these threats became ployee early frustration layed organizers’ January reality in the fall of 2000. from prevent police trying [them] “the Stephens employee met with ear- and how those right,” what was doing Kjonaas Kjonaas’s pre- As a request. aside, ... police ly organizers “pushed condition, Kjonaas to Stephens asked re- fences, took the ani- up [and] opened the in- www.stephenskills.com from move 1830.) (J.A. He described out.” mals later, days A the website was few ternet. *15 during which protest footage of another During meeting, their the two sides down. many rocks threw so demonstrators the Huntingdon. disagree” about “agreed facility that the roof of one the roof onto thereafter, Shortly targeted was Stephens in, building in the every window caved by campaign a direct that massive action this as Kjonaas described smashed. was sit-in,” protest a “virtual a included ever things [he had] of the funniest “one attempting of hundreds activists involved (J.A. 1833.) an- He described at seen.” Stephens’s access simultaneous- website ar- demonstrators where other in it repeatedly effort to shut ly an which was also facility, a targeted at rived 1,300 people partici- Approximately down. home, newly- and tore down someone’s sit-in, which resulted in this virtual pated fences, new- security disconnected erected day-to- major disruptions Stephens’s cameras, car security broke ly-installed operations. day business door, windows, front kicked members of the When two the animals. evacuated January resigned in of Directors Board illegal attributed Although SHAC often 2003, effort to obtain the Kjonaas led the anony- organizations or activity to other new directors so identities sources, presented government mous in- personal their could disseminate SHAC coordinated, di- that Defendants evidence The target in order to them. formation in the personally participated rected of tran- pages of contains dozens record Here, sample a we recount illegal acts. Kjonaas and phone calls between scribed Kjo- demonstrate instances that specific his demonstrate individuals that various involvement, order. chronological naas’s this information. effort to obtain intense 2000, www. fall of a called In the website call, online. published Kjonaas stephenskills.com February phone In a Stephens, an explained that a website it was how “awesome” discusses provided had a Huntingdon, Hunting- with investor had severed ties company lab. a began. “bailout” for the Under protests only days financial ten after don the site “Consequences,” campaign heading labeled Kjonaas explained that stated, example of Marsh had been against target if the have happened would financial institu- what must show all other
We Hunting- relationship with its did not end against Stephens tions via our actions stated, Rjonaas Diego, charged don. “It’s like how we Andreas San the man later (J.A. 2240.) too.”6 Quilcap bombing. beat with the 3, exchange In an dated March e-mail 2. Lauren Gazzola members of SHAC discussed two “resurrecting” League the Animal Defense Campaign Lauren Gazzola was (“ADL-NJ”) Jersey pur- for the of New Coordinator for SHAC. She also lived at protest activity future pose attributing headquarters. SHAC In addition to coor- crediting in lieu of organization to the dinating protests behalf, on SHAC’s Gaz- e-mail, Rjonaas In protests to SHAC. personally protests zola was involved in Darius told co-Defendant Fullmer that us- against targeted companies and individu- “making up better than ing ADL-NJ is als, including protests against Marsh silly groups going little that are other employee Robert a bombing injunctions.” Rjonaas be ... bound a subsidiary Marsh Seattle. supposed to be a added “SHAC The record reflects that several activists group national ‘communications’ and can- congratulate called to Gazzola after Marsh ... responsibility” pro- take future relationship severed its with Huntingdon. 2612.) (J.A. test events. During phone call with an incarcerated August exploded a bomb at the supporter, Gazzola about talked Chiron, Inc., a phar- California offices protests Marsh, successful against saying company Hunting- maceutical that was up “we fucked them ... they pulled then posted don a bulletin on its client. SHAC (J.A. added).) (emphasis out.” at 1935 As *16 announcing explosion, stating
website previously noted, Gazzola was videotaped group Revolutionary a called “The participating in protest of Robert Har- responsibility. post, Cells” claimed In the per’s home. During this she Rjonaas quoted saying, as “[T]his ac- threatened to burn Harper’s house down against tion Chiron marks a drastic escala- and warned that the police pro- could not severity. Although tion in SHAC-USA family. tect him or his may passion ending share the same July In injustice Guy Seattle offices of closing Huntingdon, we know Carpenter, subsidiary Marsh, nothing more about ‘The were Revolutionary targeted with Cells’ and their intentions. If I were Hun- smoke bombs. The offices Chiron, are located in tingdon very buildings, or I would be wor- two each with (J.A. 1550.) floors, twenty ried.” at Less than twelve over which were evacuated detonated, telephone hours after the bomb after the bombs were detonated. Wit- Rjonaas records show that called “pandemonium” Daniel nesses testified to Quillen's Quilcap Huntingdon. was an investor in In named "Lauren James" called office posted home SHAC address and Quilcap "put and said if would some- phone Quilcap’s president, number of Parker thing writing” longer that it no had an Quillen Quillen, on SHAC’s website. and his Huntingdon, group interest in then "Lauren's family began receiving harassing phone calls campaign call off the w[ould] of harassment.” phone and mail at Some of the home. calls Quillen (J.A. 2955.) Quilcap at then directed nature, threatening including were of a ulti- shares, to divest itself of and a Quilcap stop investing matums that if did not website, appeared notice on the SHAC direct- Huntingdon, harm someone would his chil- ing its activists to turn their attention to other home, dren. Protestors also vandalized his targets because SHAC “had received a credi- throwing paint breaking on it and windows. tip” Quilcap longer ble was no involved protests There were also a number of in front (J.A. 2955.) Huntingdon. at 13, 2002, February of his home. On someone incident, justified, noting action was the bom- in which at during the “chaos” disabilities, sabotage,” akin to “economic bings were some with people, least into the effecting huge disruption to Marsh and the stairs led down were Follow- day-to-day functioning, sounded. Guy Carpenter’s the fire alarms as street incident, the follow- posted forcing companies SHAC ing goal with the (J.A. its website: on at ing Huntingdon. statement from disassociate 2507-08.) to hostile callers got response smoked Guy Carpenter Marsh and anon- today by alleged challenge viewpoint, in to her phoned their holes who out of buildings merely Two whole callers activists. stated that ymous Gazzola after becom- evacuated apparently were because when some- “proved point,” her military- style smoke target of ing the thing happens, controversial like the Se- reported. As one channel grenades, as attention to the bombings, people pay attle stated, need to Bush we George W. cruelty, of animal whereas normal issue their holes. out of these terrorists smoke garners media coverage in the mainstream ev- of 500 animals Insuring (J.A. 2510.) the murder She little or no attention. Note: As day acceptable. is not ery by stating, also to criticism responded outlets, SHAC media reported some campaign in “this is the most successful attack, although with the is not affiliated history rights the animal movement long it action as support direct we do pushing precisely and it’s because we’re animal, human, or any does not hurt standing limits and we’re tired of in, orga- engage do not nonhuman. We signs yelling at build- holding around However, nize, fund such activities. getting and not ings writing letters enough to do those brave applaud we do anywhere. gonna do what we have We’re so. to be effective and order to do order 3010.) (J.A. (J.A. (emphasis cover- at 2520 of newscasts to save lives.” Videos added).) subsequently found bombing were ing the headquarters.
during a search *17 Conroy 3. Jacob 11, bombing, July day after the The Gazzola, pseudo- 2002, Lauren under Conroy designed and maintained Jacob Jackson,” a appeared on Se- nym “Angela and was the third resi- SHAC’s websites talk show to defend the attle-based radio headquarters. of SHAC’s Somerset dent interview, Gazzola bombings. During trial, that there were expert At testified Brian beating refused to condemn The headquarters. at the computers nine stating, Kingdom, in the Cass United the nine were that two of expert testified you’re going to judge what hard [I]t’s several publish” and used to “administer situation, what in that you’re do when SHAC, including with web sites affiliated do, they I think animals would those www.shacusa.net,www.shacamerica.net, against ... the individ- fight would back www.shacamerica.org,'www.october29.org, attacking him or her.... ual that is (J.A. 2691.) at and www.decemberl.net. sympathize with those [Pjeople that [sic] two user” of those Conroy “frequent was a them- cannot take that one animals who members looked computers. Other SHAC carrying out the they and are selves assistance, includ- Conroy for technical have against people those actions who links on the asking Conroy to create ing ability stop suffering. website, Conroy how to use asking Weaver,” used to de- 2499-500.) program (J.A. “Dream regard to at With sign pages. that the web bombings, Gazzola stated Seattle 150
Jp. Harper Josh balcony, showering people They below. also chanted plastered stickers Harper organized the Josh Seattle throughout the interior of the building. SHAC, branch of which coordinated a cam- police The pro- arrived and detained one Stephens, Inc. In the fall paign against testor, escaped. who later Stepanian re- newsletter, of the edition Josh counted the incident in a telephone call praising wrote an editorial SHAC’s Gazzola, with describing protest describing “militant” tactics. When “freaking raucous” “awe-inspiring.” days movement’s earliest in the United He asked Gazzola to it up” “write noted, Kingdom, “People spent he who had (J.A. disseminate it over the Internet. at years making money happily laugh- while 2213-24.) The SHAC website subsequent- ing being punched at beagles the face ly posted a summary protest at having were now their cars on set fire. Deloitte, attributing report to “NY Ac- Boo hoo.” He also stated while “ani- (J.A. 1366.) tivists.” at mal ... may abusers be safe from the cops, army, they and the FBI ... are The record Stepanian also reflects that ... safe from us If no one else will had substantial role in organizing pro- treat them criminal they SHAC, like the scum that tests on behalf of and he worked are, at least we will.... It time to go Kjonaas and Gazzola to coordinate (J.A. beyond reprisals.” our fear of at protest example, calendar. For in a 1696.) Harper gave speeches January call, also Little phone Stepanian told Seattle, during Rock and which Kjonaas he similar- about strategy his for a “three ly praised days and advocated for the use of protest action” in New York and rights campaigns. direct action in animal Jersey. Kjonaas New When Stepa- asked speech nian, an explana- Seattle included gonna “What’s happen Jersey?” tion of how to black Stepanian send faxes. replied, “I can’t say over the (J.A. 2028.)
phone.” discussing When 5. Andrew Stepanian organizing a protest, Stepanian national explained that he wanted attribute it to Stepanian Andrew was a SHAC activist an “amorphous collective” that no one who protests coordinated in New York. In recognize, would rather than attach February Stepanian led a (J.A. 2029.) SHAC’s name to it. He approximately twenty people at a New Kjonaas agreed to discuss the matter Touche, York office of Deloitte and Hun- via encrypted e-mail. tingdon’s security auditor. After refused *18 to admit him to building, Stepanian 6. Darius Fullmer inside, pizza delivery followed a person speak asked to to a Deloitte employee, Darius Fullmer was a Huntingdon cam- Maureen Collins. When Collins paign organizer trial, arrived Jersey. New At leave, Stepanian she asked to which government presented evidence that Stepanian responded that if Deloitte re- Fullmer’s e-mail malignantx@ address was him, aol.com, fused to talk to organization which is the same e-mail address would launch a “full-fledged campaign” that was often used to coordinate electron- against company within 48 hours. Col- ic civil disobedience via a message Yahoo lins police, security guard called the and a 30, 2001, board. For example, August on grabbed Stepanian and escorted him out of Fullmer a message disseminated with the moment, building. At that subject the other “September line SHAC Calendar.” (J.A. protestors 851-52.) flyers threw from a third floor message listed sev-
151 including imprisonment; Harper months’ to 36 September, for eral events to use for imprisonment; Stepanian numbers months’ to 36 names and facsimile Stephens, Mondays” against imprisonment; Fax months’ and Fullmer to 12 “Black York. The record Bank of New imprisonment. Inc. and months’ Defendants filed Fullmer researched new Court, reflects that timely appeal also notice of in this a personal as well as the corporate targets challenging underlying both their convic- for employees who worked information tions and sentences. companies. He assisted Gazzola
those on the SHAC this information posting II. protests against these to facilitate website subject The District had matter Court individuals. companies and jurisdiction § under 28 U.S.C. 1331. We jurisdiction § have under 28 U.S.C. D. History Procedural III. 16, 2004, SHAC, Kjonaas, September
On
Gazzola,
Harper, Stepanian, and
Conroy,
The threshold issue is whether the
charged
superceding
were
a
Fullmer
AEPA is unconstitutional either on its
One of the indictment
indictment. Count
face,7
as-applied
to Defendants. This
that all six individual defendants
charged
challenges
Court reviews
to the constitu
Enterprise
to violate the Animal
conspired
tionality
aof
statute under a de novo
Act,
§
18 U.S.C.
43. Count
Protection
standard of review. United States v.
Gazzola,
SHAC,
Kjonaas,
charged
Two
(3d Cir.2008).
Weatherly, 525 F.3d
conspiring to commit inter-
Conroy with
in violation of 18 U.S.C.
stalking
state
A
2261A(2)
§ 371. Counts
§
and 18 U.S.C.
Constitutionality
the AEPA
SHAC,
Three, Four,
charged
and Five
Vagueness
1. Void
Gazzola,
Conroy
with sub-
Kjonaas,
Dillen-
stalking
Sally
interstate
stantive
argue that
the AEPA
Defendants
back,
Harlos,
Harper,
and Robert
Marion
violates the Due Process Clause and
SHAC,
charged
respectively. Count Six
the statute does
First Amendment because
Gazzola,
Kjonaas,
Conroy,
clearly
prohibited conduct.
define
a
de-
conspiring to use
telecommunications
argue that
Defendants
Specifically,
abuse, threaten,
in viola-
and harass
vice
damage”
“physical
“economic
terms
§
and 47 U.S.C.
tion of 18 U.S.C.
As a
disruption”
clearly
are not
defined.
223(a)(1)(c).
§
result,
argue
Defendants
the statute
2, 2006,
chilling
speech
on
because
following a three-
has
effect
On March
speech,
all
trial,
protestors
all
will refrain from
jury
convicted Defendants
week
12, 2006,
ambigui
to the
protected speech,
even
due
September
all counts. On
on
In addi
ty
proscribes.
of what the statute
District
sentenced SHAC to
Court
*19
tion,
vague
that the
na
argue
72
Defendants
years’ probation; Kjonaas
to
five
to
prosecutors
ture of the statute allows
imprisonment; Gazzola to 52
months’
by
covered
Conroy
determine what conduct is
imprisonment;
to 48
months’
Oakes,
See, e.g.,
challenge
v.
491
is moot
issue.
Massachusetts
7. Defendants' overbreadth
582-83,
2633,
576,
superceded by
105
because the statute
109 S.Ct.
U.S.
Enterprise
in 2006.
(1989).
Animal
Therefore,
Terrorism Act
L.Ed.2d 493
jurisdiction
we
to address this
lack
152
(1972)).
1953,
92 S.Ct.
statute, inevitably permitting prosecutorial
“Simply
content.
because a criminal statute could
based on
decisions
precisely
have
written more
does not
been
argue that
primarily
Defendants
mean the statute as written is unconstitu
speech
apply
was to
goal
political
of their
tionally vague.”
(citing
Id.
United States
directly,
as
Huntingdon
as well
pressure to
Powell,
87, 94,
316,
v.
423 U.S.
96 S.Ct.
46
by targeting
compa-
associated
indirectly,
(1975)).
addition,
L.Ed.2d 228
the Su
nies,
change
its
to force
preme Court has held that scienter re
contend that this is
practices. Defendants
quirements in criminal statutes “alleviate
legal
political
form of
accepted
concerns,”
vagueness
because a mens rea
by the First Amend-
protest protected
likely
element
it less
that a defen
makes
ment,
pro-
that the AEPA criminalizes
dant will be convicted for an action that he
by proscribing “physical
tected behavior
See,
by
e.g.,
or she committed
mistake.
the intent to cause “eco-
disruptions” with
Carhart,
124, 149,
v.
550
127
Gonzales
U.S.
damage.”
government
The
coun-
nomic
(2007).
1610, 167
480
Fur
S.Ct.
L.Ed.2d
excepts
that the AEPA
“lawful” dis-
ters
thermore,
statutes,
challenges
facial
in
excluding
protected
all
ruptions, therefore
cluding challenges
vagueness,
based on
are
activity.
Washington
disfavored.
Grange
State
v.
vagueness
“A statute is void on
Party,
Washington
Republican
State
552
(1)
provide
grounds
people
if it:
‘fails to
442,
1184, 1191, 170
U.S.
128 S.Ct.
L.Ed.2d
intelligence
opportu
a reasonable
ordinary
(2008).
151
The Court noted that “facial
it
nity
prohib
what conduct
understand
challenges
contrary
...
run
to the funda
its’;
(2)
encourages
even
or
‘authorizes or
principle
judicial
mental
restraint
discriminatory
enforce
arbitrary
anticipate
question
courts should neither
” United,
Stevens,
ment.’
States v.
533
of constitutional
in advance of the
law
ne
Cir.2008)
(3d
218,
(quoting
249
Hill v.
F.3d
cessity
it
deciding
nor formulate a rule
Colorado,
703, 732, 120
530 U.S.
S.Ct.
of constitutional law
than
broader
is re
(2000)).
2480,
inqui
597
The
L.Ed.2d
quired by
precise
facts to which it is to
basis,
case-by-case
ry
undertaken on
(internal
applied.”
quotation
be
Id.
marks
reviewing
and a
court must determine
omitted).
vague as-applied
the statute is
whether
party.
Filippo
proscribes
San
v. Bon
The AEPA
the use of an
affected
(3d
1125,
giovanni, 961 F.2d
Cir.
instrument of interstate commerce with
1992).
context, the
damage [or]
“In the criminal
Su
“intent
cause
[to]
[]
preme
vagueness
any property (including
has held that since
loss of
Court
animals
records)
notice, ‘they
attacks are based on lack of
used
animal enter-
”
43(a) (2002) (em-
any
§
....
may
specific
prise
be overcome
case
18 U.S.C.
added).
persons would know phasis
where reasonable
The definitions section of
“
puts
pun
‘physical disrup-
their
at risk’ of
the AEPA states that
[them]
conduct
(quoting
any
disrup-
ishment under the statute.”
Id.
tion’ does not include
lawful
Maynard
Cartwright,
public, gov-
v.
486 U.S.
108 tion that results from lawful
(1988) (altera
ernmental,
enterprise employee
S.Ct.
criminalization of
see also
States v.
United
(“Un-
(3d Cir.2005)
474,
website is unconstitutional.
through the
n.
414 F.3d
483
9
Brandenburg, only speech inciting im-
der
agree
postings
that the
parties
All
may
minent
action
be restricted.”
lawless
politi
to an issue of
speak
on
website
omitted)). Therefore,
(emphasis
for the
cal, moral,
importance
ethical
to
speech at issue in this case to fall outside
humane treatment of
society
day’s
—the
Amendment,
purview the First
of
this
Therefore,
fit
the issues here
animals.
(1)
speech
must determine that the
Court
rubric of the First
squarely within the
(2)
invited imminent
lawlessness and
that
they contribute to the
because
Amendment
likely
the imminent
lawlessness was
ideas,”
of
as well as educate
“marketplace
occur.8
Moreover, the
urge
others to action.
many
that
find
speech
speech
at issue is
However,
advocating
while
vio
uncomfortable,
pre
which is
offensive
unlikely
that
imminent and
lence
is not
cisely
speech
requires
that
type
protected, speech
occur is
constitutes
See, e.g.,
protection.
First Amendment
a “true threat” is not.
v. United
Watts
1,
City Chicago,
v.
337 U.S.
Terminiello
States,
705, 708,
1399, 22
394
89 S.Ct.
U.S.
(1949) (not
4,
894,
L.Ed. 1131
69 S.Ct.
93
(1969).
Watts,
L.Ed.2d 664
In
the Su
high pur
its
ing
speech
serve[s]
“best
a
preme
distinguished
Court
“true threat”
it
a condition of unrest
pose when
induces
“political
hyperbole,” explaining
from
However,
people
anger”).
...
and stirs
protected speech,
the latter is
while the
can run afoul
provocative
speech
political
deciding
not.
In
speech
former is
whether
of the First Amendment.
threat,”
constitutes a “true
a court should
Ohio,
444,
Brandenburg
v.
U.S.
totality
consider the
of the circumstances
1827,
(1969),
L.Ed.2d 430
89 S.Ct.
isolation,
just
not
the words
wheth
held that the First Amend-
Supreme Court
“conditional,”
er the threat is
reac
permit
government]
“do[es]
[the
ment
(noting
tion of the listeners.
Id.
that the
advocacy of the use
proscribe
to forbid or
words,
context,”
defendant’s
“taken
except
of force or of law violation
where
merely
were
a “crude and offensive” meth
advocacy
inciting
such
is directed to
making
political
od of
a
statement and did
action and
producing imminent lawless
threat).
not constitute a true
likely
produce
to incite or
such action.”
case,
In this
the record
hun-
447,
includes
elabo-
Id. at
the at SHAC phones companies had sev- firming that various above, Kjonaas As discussed deliv Huntingdon. As soon as ered ties with workshop at the in Little speech ered Kjonaas received written con- or Gazzola Rock, praised in which he the use of vio firmation, stopped-strongly protests distasteful, techniques. lent we find While SHAC, of they, on behalf suggesting protected speech. that this There is no over the entire had substantial control speech evidence that the was intended to addition, the individual De- campaign. In anyone participate incite in imminent up held the successes of ille- fendants However, likely unlawful action. an to other com- gal campaigns example as speech when we view the in context— in furtherance of panies they targeted, alongside overwhelming evidence that to violate the AEPA. their in Kjonaas deeply involved the coordi illegal protest of ac Further, nation and execution conduct constituted “true other tivity speech informs us of his state threats,” also removes Defendants’ which —the agree of mind. with the District We speech from the realm of First Amend- Kjonaas’s conclusion that convic In Court’s protection. particular, ment Defen- conspiring tion for to violate the AEPA is to instill fear in past dants used incidents by the First prohibited not Amendment. targets. example, For SHAC dis- future of Brian played placards photos with Cass The record contains more instances of injuries high- his beating, after his with Kjonaas’s involvement and coordination red, Indeed, they lighted protests. activity than illegal possibly we could targets, exit of some quick attributed the that, it say recount here. Suffice Touche, past to the such as Deloitte and above, Kjonaas’s metaphorical detailed experiences employees companies all fingerprints were over several regard, like and Marsh. this Stephens illegal activities. Perhaps SHAC’s their actions meet the standard of “true example clearest is his involvement with Watts, threat” as articulated in because campaign against Stephens. Prior to context, protests, speeches, viewed in Kjonaas’s meeting Stephens rep- with the all tools to further postings, and web were Stephens’s resentative to discuss invest- Moreover, given their effort. the success Huntingdon, Stephens rep- ment with including the campaign past, in the Kjonaas resentative asked to shut down private property and the destruction of www.stephenskills.com, a website en- telecommunication attacks on various com- couraged electronic civil disobedience. panies, implied threats were not condi- days, the website Af- Within was down. tional, speech rightly and this instilled fear meeting, during Stephens ter the which in the listeners. stop dealing Huntingdon, refused to illegal campaign against that some of the direct action We therefore conclude website, Stephens equally telling viewed in con- escalated. It is speech on SHAC’s text, Kjonaas’s telephone the First Amend- records indicate protected is not targeted during campaign responsible close person called the that he hours after bombing including Seattle Huntingdon, physical the Chiron assault only representa- These are happened. it on Brian Cass. He lived in fear that some- Kjonaas’s direction and samples tive thing happen family, similar would to his campaign, action of the direct coordination record, protes- and from the his fear of the context, we do find viewed but acting on their tors threats was reason- have been vi- rights First Amendment his reasonably able. Gazzola could foresee olated. that Harper interpret would her words as expression a serious of intent to harm b. Gazzola *24 Harper family. Robert and his incriminating One of the more assuming Even had not made Gazzola against Gazzola was her pieces of evidence Harper these threats at the demonstra- in the demonstration at participation tion, Gazzola, the record establishes that government Harper. of Robert home Kjonaas, plan- like was instrumental in the trial, in which Gazzola a video showed ning illegal and execution of activ- SHAC’s threatening to burn down can be heard repeatedly employed illegal ities. She tac- him that the Harper’s warning house and protect strategies him. Under tics as one of the used to further police cannot framework, act, in con goal this viewed of closing Hunting- Watts SHAC’s overall conduct, other consti text with Gazzola’s don. to a true threat and is sufficient
tutes protest activity her from First remove Conroy c. protection.11 Amendment Conroy, designed who and main threatening to how find it hard see We SHAC, tained the websites on behalf of “political house is to burn down someone’s has the most obvious connection to the hyperbole” might protected such that it be postings regarding electronic civil disobe in place. the First Amendment the first dience, imminent, illegal instigated which However, assuming that it has some even activity, responsible he was for because value, in the underlying political viewed posting the content on the Internet. circumstances, totality this' consti- Therefore, given his level of control over protest a “true threat.” this tuted When website, our that SHAC’s conclusion family Harper Robert and his place, took civil disobe coordinated electronic website campaign of the for a target had been the conclusion that requires dience alone keenly Harper few weeks. Robert regard in this do not war Conroy’s actions and what happening, aware of what was protection.12 to who been rant First Amendment happened, had others had Harper’s charged outside Robert was arrested and in the to Gazzola’s conduct 11. Gazzola spe- home, this Commonwealth of Massachusetts for and that the state court did consid- activity protest conduct, cific outside of Robert Har- including er the entire course per’s dis- home. The Massachusetts court protests, involvement in the website and other charges on First Amendment missed agree We with the Dis- at issue in this case. grounds. counsel raised this issue Gazzola's Court on this issue. trict the District Court when he moved for a in following new trial Gazzola’s conviction Conroy’s argument that the 12. We address hearing during After a both this case. which administra- evidence connects him website heard, parties fully Court were the District only conspiracy terminated in tion after the concluded that the Massachusetts court’s rul- V., section infra. facts, only ing set of limited was on narrow summation, the During disobedience. its Stepanian d. government emphasized Harper’s coordi- conversation telephone In a recorded Seattle, speeches long- nation of his Gazzola, a pro- described Stepanian friendships with some of his co- standing the New York he coordinated inside test Defendants, and his visit to a Deloitte and Touche, Hunting- of Deloitte offices it during Touche office in Seattle which security After refused don’s auditor. appears nothing illegal. he did building, he fol- into the Stepanian admit inside, gave speeches, including also delivery person spoke lowed a how to explained one which he send manager The office manager. to the office faxes” wrote an editorial “black building, from the ejected Stepanian he endorsed militant action. He which paper threw protestors which time other Kjonaas express surprise his called building plastered the inside successes, pleasure with SHAC’s and he e- clearly Although Stepanian with stickers. Kjonaas asking speakers mailed action in for this accepted responsibility Gazzola, speak travel to Seattle to on behalf of the call with phone *25 Harper’s organization and the movement. to “New York was nonetheless attributed personal conduct does not cross the line of Stepanian provided activists.” himself illegality; punish simply him on the plan- circumstantial evidence of his strong political run speeches basis of his would illegal protest activi- ning and execution However, of the his Kjonaas. afoul constitution. in a conversation with ty phone conduct, infra, provide as discussed does Kjonaas Stepanian asked what his When jury circumstantial evidence from which a were, that he could plans Stepanian replied reasonably could have inferred that Har- phone, over the not share the information per conspiracy involved in a to violate was phone for fear that was presumably Mitchell, the AEPA. v. 508 See Wisconsin wiretapped. 476, 489, 2194, 124 L.Ed.2d U.S. 113 S.Ct. e. Fullmer (1993) (“The 436 First Amendment ... prohibit evidentiary does not use of Fullmer, operating under e speech to establish the elements of a crime government mail address that the identi intent.”) prove According- or to motive or him, coordinated ille belonging fied as ly, AEPA to him application is not activity on behalf of SHAC via gal protest unconstitutional. activity in This message Yahoo board. inciting participate the readers to cluded 3. Conclusion Mondays” Stephens, against in “Black Fax hold that the AEPA is not We void Conroy, Inc. Bank of New York. Like vagueness and is not unconstitutional as- commit speech Fullmer’s incited others to all applied to Defendants. place, time and illegal designated acts at a standard, Brandenburg which meets the IV. protected
removing it from the realm speech. We next address Defendants’ con improperly tention that the District Court Harper
/ jury regard instructed the to the ele One, government primarily argues Conspiracy The ments of Count to Violate plenary that coordinated a SHAC cam the AEPA. We have review of the Court, Seattle, by the District paign gave speeches legal and that he standard used civil the District choice advocating explaining electronic and we review Court’s
159 at trial of discretion. evidence that Defendants’ wording for an abuse Yeaman, activity Huntingdon 194 F.3d directed at actually States v. United (3d Cir.1999). Huntingdon caused a loss well over $10,000. I.B., supra See Section (noting argue that primarily Defendants the electronic civil disobedience di- permitted the improperly District Court rected toward cost compa- protest activity jury to consider SHAC’s $400,000 business, ny $50,000 in lost Hun- associated with against companies staffing repair computer sys- costs to enterpris- which were not “animal tingdon, online, bring tems and them back es,” violate conspiracy as evidence of a $15,000 replace computer equipment). legisla- point the AEPA. Defendants to the AEPA, history noting of the that it tive Defendants next contend that the Dis- incorpo- not until 2006 that the statute improperly trict jury Court instructed the “causing” or to “a “damaging” rated loss “damage any or ... property loss of to, entity having or a connection person by used the animal enterprise” does not with, with an relationship or transactions profits.” include “loss of Defendants ar- U.S.C. enterprise.” animal gue that the District Court should have (2006). 43(a)(2)(A) § jury they instructed first had to disagree damage with Defendants’ character- any property We “find or loss of used government’s ization. evidence enterprise,” the animal or a object ultimate showed If jury damage to do so. found such physical disrup- to cause a conspiracy was a conspiracy damage, to cause such *26 jury the instruction defined as tion—which argue only Defendants then should the normal course of “interference with jury the have calculated economic damage, Huntingdon re- activity” business or profits. which includes lost —at In sulting damage Huntingdon. to this reading only Defendants’ of the statute regard, against Defendants’ actions third if helps government them did not Huntingdon prop- associated with parties $10,000, prove exceeding a loss exclusive of erly provided circumstantial evidence of noted, profits. previously lost As Hun- conspiracy to violate the Defendants’ $15,000 tingdon pay replace had to to com- AEPA, actually though they even were puter equipment protest involving after a conduct prosecuted and convicted their civil disobedience. electronic stalking parties toward third under the remaining have considered all the We statutes. and telecommunications arguments the individual Defendants make argue next that the District Defendants regarding jury errors in the instructions jury it Court erred when instructed One, that no for Count and we conclude they could convict Defendants if the necessary. there- further discussion is We only that Defendants intended jury found prop- fore conclude that the District Court property” exceeding to cause a “loss of erly jury regard instructed the with to $10,000. argue prop- Defendants that the One. Count required er instruction would have jury actually that Defendants to find V. property” a “loss of excess of caused $10,000. arguendo, appeal The next issue on is whether assuming, Even support instruction was erro- there was sufficient evidence the District Court’s neous, jury’s guilty harm- verdict. We conduct the error would have been entire ample “independent review” of the record government presented less. The 160 only activity objec- with the principles Amendment are lawful First
because Kosma, v. closing Huntingdon. States 951 of We note at involved. United tive Cir.1991) (internal (3d 549, quota- F.2d 555 that Defen- the outset of this discussion omitted). tion marks sufficiency largely arguments dants’ are argument tied to their that the AEPA was
A. as-applied. unconstitutional Conspiracy to Count One— the AEPA
Violate government need not intro conspi evidence to establish a duce direct to violate the prove To v. agreement. ratorial United States AEPA, government required (3d Cir.2007). McKee, 506 F.3d 238 following beyond a rea- demonstrate the Rather, government prove can (1) that doubt: Defendants sonable evidence, agreement with circumstantial is, they agreed with one conspired, that (2) others; upon “based reasonable inferences drawn to use a another with and/or commerce; foreign or from actions and statements of the con facility in interstate (3) purpose causing physical spirators for the or from the circumstances sur (citations functioning Hunting- disruption to the the scheme.” rounding Id. (4) don; intentionally damage omitted). unques Defendants in this case property Huntingdon.13 cause the loss tionably animal agreed to advocate for 43(a) (2002). addition, § 18 U.S.C. rights agents as members and of SHAC. charged, pen- under the Defendants were However, Defendants cannot be convicted statute, causing alty component of associations, of their solely because be $10,000. damage exceeding Id. economic clearly run cause such a conviction would 43(b)(2). § guarantee afoul of the First Amendment’s See, e.g., of freedom of association. appeal
Defendants contend on that there Hardware, v. N.A.A.C.P. Claiborne 458 prove evidence to the third was insufficient 886, 918-19, 102 73 U.S. S.Ct. Defendants and fourth of these elements: McKee, (1982); L.Ed.2d F.3d causing physical acted for the purpose *27 conspiracy To establish a under to intention- disruption Huntingdon to circumstances, government these “ the must ally damage Hunting- or cause the loss of that group possessed ‘establish itself property. expressly pro- don’s The AEPA goals unlawful and that the individual held ‘physical disruption’ vides that “the term a specific illegal intent to further those any disruption lawful does include ” McKee, 506 at (quoting aims.’ F.3d 239 public, governmental, results from lawful Hardware, 920, 102 Claiborne 458 U.S. employee or animal reaction to enterprise 3409). This evidence must be an ani- S.Ct. the disclosure of information about 43(d)(2) law,” judged “according § to the strictest enterprise.” mal 18 U.S.C. (in (2002). juris exception underpins Defen- the “strictissimi doctrine.” Id. This omitted). However, argument they agreed quotation dants’ to use ternal States, Court, requirement. charge 13. in its on the See v. United District Whitfield 209, 213, 687, general conspiracy, required gov- law of L.Ed.2d 543 U.S. 125 S.Ct. 160 prove ernment to an overt act in furtherance (2005) (“[W]here Congress 611 had omitted conspiracy conspiracy for each of the conspiracy provision any from the relevant However, counts. concerned, so far as the AEPA was act, expressly language requiring an overt language of the statute did not requirement Court would not read such a in 43(a)(2) require § act. 18 U.S.C. an overt See statute.”). (2002). The court should not such a infer 161 stein, (3d Cir.1978) (cit- 576 F.2d need not show each government Cohen, conspiracy ing commit- United States v. 516 F.2d every member of the (8th Cir.1975)). unlawful act in furtherance of the ted an conspiracy’s goals. Ample circumstantial evidence demon- Conroy agreed strates that and Fullmer to applying
Even this strict stan in participate conspiracy. Conroy this re- dard, government provid that the find we Kjonaas sided with in and Gazzola beyond prove association to ed evidence Somerset, Jersey New headquarters of SHAC, Kjo- conspiracy regard to there, Using computers SHAC. located he Gazzola, naas, Harper, Stepanian Conroy, designed multiple and maintained websites and Fullmer. primary affiliated with SHAC—the tools of there is no direct evidence that While campaign against Huntingdon. He expressly agreed partic- the Defendants to posted on frequently these websites de- its ipate in the and further regarding tailed information when and how ample there circumstan- goals, unlawful is supporters participate could in ille- jury from which the could tial evidence gal campaign activities. postings These agreement have inferred their to do so. warnings times included and threats of had Kjonaas leadership posi- and Gazzola against violence targets, SHAC’s with the SHAC, organization clearly in tions intimidating intent of targets those into activity engaged unprotected in via its complying with SHAC’s demands. This Kjonaas and were in- website.14 Gazzola strong circumstantial supports evidence all of strumental in the coordination of Conroy agreed par- the conclusion that to activities, legal illegal. both SHAC’s ticipate conspiracy. Similarly, Full- overwhelming There is also evidence mer, malignantx@ via the e-mail address to evade law en- attempts their constant aol.com, personally coordinated electronic and cover their tracks: use of forcement message civil disobedience via internet encryption programs wipe devices and to boards. It inconceivable that he could drives; attributing computer their hard argue agreed partici- now that he never illegal organizations activities to fake pate illegal activity personally orch- —he activists; pseudonyms. and the use of estrated it. enough alone this evidence is not While agreement, demonstrate when viewed There is sufficient circumstantial evi- context, jury it is circumstantial evidence of dence from which the could infer that agreement illegal Harper agreed participate their also in this participate See, activity. e.g., conspiracy. Harper organized Pearl- United States v. Seattle *28 SHAC, States, 477, (3d ("It Cir.1939) only corporation, a F.2d 14. as can act 101 478 is case, Kjonaas through agents. guilty law that the intent of offi- its In this well settled only agent corporation may imputed the true of SHAC because he was cers of a be to the guilt only corporation. corporation prove named the in order to the of the officer of itself Paulsen, relationship Kjonaas, corporation.”); Given the between see also Erik D. SHAC, case, Note, Imposing in a Limits on Dis- and the events at issue this Prosecutorial finding Kjonaas Agreements, agreed participate Corporate to in cretion in Prosecution that 1434, (2006) conspiracy clearly permits imputation (noting 82 N.Y.U. L.Rev. 1447 may liability corporation SHAC. that a be held liable for an of criminal to See United Sain, 463, (3d agent's agent States v. 141 F.3d 474-75 Cir. actions if the acts within the 1998) ("If agent employment corporation scope of and ac- an of the con his/her his/her individual, spires corpora company, with another tion is for the benefit of the liability relatively easy agent may is tion for which the individual is the that this standard of liable.”); criminally satisfy). be v. United to Mininsohn
162 campaign following a local weeks in New York and New branch by Stephens, company targeted a against Jersey. Kjonaas at- He worked with to lengthy telephone In a conversa- SHAC. illegal activity organiza- tribute to sham enthusiastically Kjonaas, Harper tion with tions, illegal protest and he led an at De- in cam- recent events the SHAC discussed loitte and Touche.15 strategies. and future He wrote paign therefore conclude that there was We gave speeches praising mili- editorials and conclude, jury sufficient evidence for the to in- tant tactics and direct action. These in speech doubt, SHAC, cluded a Seattle which he beyond a reasonable explained how the audience could send Gazzola, Kjonaas, Conroy, Stepanian, Har- faxes, primary a tool in black SHAC’s per agreed participate and Fullmer to speech campaign. Harper de- conspiracy to violate the AEPA. clared, “I appropriate think it’s to challenge extent that To the Defendants response ... after go have a militant to sufficiency regard with evidence everything at ... our them with hands. One, to the other elements Count we Anything that we have available to use and (J.A. to shut them down.” reject arguments.16 do our utmost those As we discussed 2531.) From this constellation of evi- IV, supra, in section we find that jury reasonably could dence the conclude object conspiracy of Defendants’ towas conspired others and physical disruption Huntingdon, cause a purpose causing shared the unlawful intentionally an animal enterprise, and to physical disruption damage proper- damage property. or cause the loss of ty Huntingdon. Stepani- The circumstantial evidence of B. agreement overwhelming an’s is not as Two, Three, Four, co-Defendants, Counts against and Five- the evidence his enough support jury’s but there Conspiracy Stalking to Commit beyond conclusion a reasonable doubt. Stalking and Substantive Gazzola, Kjonaas and Stepanian, like had SHAC, Kjonaas, Conroy Gazzola and leadership position within SHAC. He al- were convicted of to commit illegal activity luded to his coordination of interstate stalking, aiding addition to Kjonaas in a call with phone when he abetting substantive stalk- interstate explained Kjonaas that he could not Dillenback, ing Sally Harlos, Marion explain unprotected phone over line activity what he planned Harper, respectively. had and Robert Smith, recognize 15. We that Deloitte and United v. Touche is don. States 294 F.3d enterprise” (3d Cir.2002) not an "animal as defined (quoting 481 n. United States recognize We AEPA. also that under the 2002 (3d Cir.1956)). Migliorino, v. 238 F.2d statute, version of violation of which De- convicted, charged partic- were fendants Defendants this case cross-reference ipation campaign against in a Deloitte and portions of their co-Defendants' briefs. It is indirectly compa- Touche and other affiliated *29 arguments difficult to discern what each De- itself, not, by enough nies is to a substantiate raise, specifical- fendant intended to or more However, conspiracy to violate the AEPA. them, ly, given how to label the similarities regard agreement par- with to Defendants' to arguments regarding between their sufficien- ticipate illegal in activities to further their evidence, cy challenges the of their based on goals, entirety, we view the must record in its Amendment, jury the First and the instruc- only agreement par- and not look to their tions. ticipate against Hunting- in activities directed stalking pro geted by campaign; Interstate the SHAC activists § To prove constantly they 18 U.S.C. 2261A. used ultimatums when tar- scribed individuals, government geted the must establish stalking, threatening “or else” if (1) facility of interstate the companies Defendants used failed to sever their ties (2) commerce; in engage Huntingdon; a course of with following the Chiron place Kjonaas the intent to a person bombing, conduct with noted the escalation “severity” in reasonable fear of death or serious bodi the campaign and warned ly injury person either to that or to a that Huntingdon and Chiron should be member; family “very and partner or immediate worried.” The SHAC website (3) actually put the course of conduct that “anonymous boasted that ar- activists” had person ranged in reasonable fear of death or seri for an undertaker to collect a tar- bodily injury partner get’s body, ous to himself or his the “Top and 20 Terror Tac- See, family e.g., or immediate member. tics” physical mentions attacks and threats Wills, injure v. 346 F.3d 493- to kill United States as effective means of (4th Cir.2003). protest. To prove The website discussed Andrew stalking, govern interstate “bloody” to commit Baker’s California bungalow, with line, run, that prove charged you ment must also “You can can’t but hide!” addition, agreed participate defendants a con the SHAC website celebrated spiracy stalking. to commit interstate Fi extreme by posting pho- acts vandalism nally, regard “aiding abetting,” tographs with of overturned vehicles and hous- punishable principal splattered a defendant is as the es paint. Kjonaas with red establishes, government beyond if the a knew that all of this information was wide- doubt, internet, ly reasonable that either the defen on the available and that when “aid[ed], Dillenback, Harlos, dant or stalking committed were tar- abet[ted], command[ed], counseled], in geted, they easily could discern what had or act proeure[d]” happened duce[d] substantive to those who came before them stalking by person. accordingly. another 18 U.S.C. and feel intimidated § 2. Gazzola SHAC
1. Kjonaas argues govern Gazzola that
Kjonaas argues govern alleged ment failed to establish that produce targets, ment failed to sufficient evidence threats were communicated to the place of his intent to the victims in reason and that there was insufficient evidence death, bodily injury targets’ bodily able fear serious that the fear of harm was required by stalking the interstate reasonable. also the latter stat makes Specifically, only argues argument. ute. he he harass,
intended to “make the [victims’] reject arguments We can these with lit- miserable,” lives cause “emotional dis tle personally discussion. Gazzola stood tress,” (Kjo- the victims. “embarrass” Harper’s outside of Robert house and 78-79.) Br. in naas He contrasts the down, it threatened to burn and warned type tention to inflict this of emotional police protect that the could not him. All requirement statute’s distress Dillenback, stalking victims-Sally put that he intend to the victim in “reason Harlos, Harper-testi- Marion and Robert injury.” bodily able fear of death or they they fied that were had aware disagree. targeted. We SHAC invoked Brian been Dillenback testified injuries Cass’s to instill fear others tar- she received an e-mail which someone *30 addition, roy’s if someone name in office. how she would feel SHAC’s asked her account, Conroy him created his which he and filled PGP open “cut her son testified used to communicate with his co-Defen- stalking All the victims poison.” activists, in safety, for their dants and other SHAC Janu- they were afraid families, they ary peppered 2002. The record is also safety of their because Brian with evidence of his involvement with the happened had Cass knew what campaign in this cam- before the termination of preceded and others who them well conspiracy in December 2002. paign. regard Conroy’s arguments With Conroy in personal about his lack of involvement Conroy stalking, government we note that the Finally, argues there was charged aiding abetting, him all him with evidence to convict insufficient Conroy’s a principal. The crux of his not as Given overall stalking-related counts. conduct, jury could is that he was tied to the con course conclude argument beyond Conroy a through administering his work reasonable doubt spiracy website, website, proof only primary maintained the tool of which there stalking possible. that made the computers after the 2003 seizure of the web- only headquarters. argues from He site not communicated the victims’ SHAC information, him government charged personal that because the but the website also information that conspiracy with involvement a that end disseminated the made 2002, his the victims’ fears reasonable: threats that ed December involvement with people in 2003 does not suffice to convict associated with would Cass, already photos be treated like Brian conspiracy him of a had ter ex- vandalism, ultimatums, regard to the treme and threats. minated. With substantive counts, Conroy’s stalking Conroy argues that there involvement as website adminis- trator, posted jury pre- that he in which the could conclude is insufficient evidence Dillenback, Harlos, conspiracy, formation about dated end of the made the website, if Harper stalking, campaign, possi- on the and that not the entire Robert prove cannot that he was ble. government campaign even aware of the nature of the C.
against those individuals.
Conspiracy
Count
to Use a
Six—
Conroy’s argument
ignores evidence of
Telecommunications Device to
beyond the evidence that
his involvement
Abuse, Threaten and Harass
primary
computers
he was the
user of
SHAC,
Gazzola,
Kjonaas,
Conroy
used to administer SHAC’s websites.
Conroy managed Harper
There was evidence that
were convicted of
abuse,
early
as
August
SHAC’s website
use
telecommunications device to
harass,
predates
gov-
which
the start date of the
threaten and
violation of
223(a)(1)(c).
charged
§
conspiracy.
ernment’s
Docu- U.S.C.
SHAC and
challenge
sufficiency
ments that contained confidential business
of the evidence on
posted
argu-
records for Bank of New York were
this count.
find that
We
SHAC’s
frivolous,
August
and those same documents ments are
require
and do
response.17
reject
were found in a folder labeled with
Harper’s argu-
Con-
We
statute;
(1)
(2)
argues
17. SHAC
that facsimile transmis-
communications
even if the trans-
sions do not fall within the ambit of the tele-
of “black faxes” does fall within 47
mission
*31
why
discussed above
as to
the AEPA is
merits for the reasons
constitutional on its
Defendants,
face
applied
and as
to the
I
reference to Count One.
part company
my colleagues
with
in as-
sessing whether the Government in fact
VI.
proved that
the Defendants committed a
a host of
Defendants raise
additional
conspiracy
issue,
to violate the AEPA. This
objec-
arguments pertaining
evidentiary
to
narrow,
though
significant
nonetheless
challenges
to the reasonableness
tions
light
for this case.
In
statutory
of the
carefully
have
re-
of their sentences. We
prohibitions of the AEPA and the evidence
arguments,
viewed their
and we find them
trial,
that the
presented
Government
I
However,
to be without merit.
we note
cannot conclude that there was sufficient
concede,
parties
agree,
that all
and we
evidence,
law,
a as matter of
to convict the
District
when it failed to
Court erred
Defendants of conspiring to violate the
payment
for
devise
schedule
Therefore,
AEPA.
I would reverse the
$1,000,001 in restitution.
See United
all
convictions as to
Defendants on this
(3d
Lessner,
185, 201
States v.
498 F.3d
count.
Cir.2007) (“We
that a
have held
district
majority
states that
the issue in
when, having
plain
court commits
error
controversy
appeal
on
is whether
there
restitution,
ordered full
it fails to state on
was sufficient evidence that Defendants
the record the manner and schedule of
conspired
“physical disruption
to cause
to
payments
taking
after
into account the
functioning Huntingdon”
“in-
and to
resources.”).
defendant’s financial
As a
tentionally damage or cause the loss of
result, we
to the District
remand
Court
property Huntingdon.” Majority Op.
to
purpose.
Part
IV.A. would frame the central issue
differently,
asking
instead
whether there
VII.
was sufficient evidence that
the Defen-
reasons,
foregoing
For the
we will af-
agreement,
dants formed an
the purpose
firm the convictions and sentences of De-
AEPA,
of which would violate the
and had
SHAC,
Kjonaas,
fendants
Kevin
Lauren
specific
illegal
intent
to further this
Gazzola,
Conroy,
Stepanian,
Jacob
Andrew
States,
goal. See Salinas v. United
Joshua
and Darius Fullmer. Fi-
52, 65,
U.S.
118 S.Ct.
stantive but suffices FISHER, Judge, dissenting. Circuit that he adopt goal furthering endeavor.”). facilitating criminal I separately express disagree- write subtle, this distinction is its effect on While my colleagues’ ment with re- conclusions how one views the Government’s evidence garding sufficiency of the evidence is not. One, convict the on Defendants Count reviewing challenge to violate the Animal Enter- the Defendants’ (AEPA). evidence, prise Although sufficiency Protection Act I to the we must agree majority’s analysis light most view the evidence most favor- 223(a)(1)(c), § persons initiating U.S.C. there was insufficient the transmission harass; (3) provide evidence of an intent to who information that de- those applies only illegal
the telecommunications statute scribes and directs the transmissions. *32 166 disrupting an animal physically at issue is and ask whether to the Government
able intending damage to cause enterprise and fact could have found of any rational trier of the property to its violation beyond crime or loss of the elements the essential AEPA. Virginia, v. Jackson a reasonable doubt. 2781, 318-19, 99 S.Ct. 61 443 U.S. insuffi- discussing the Defendants’ (1979). Here, of the version L.Ed.2d 560 argument, the ma- ciency of the evidence the Defendants AEPA under which the find that the jority simply states: “[W]e punishment for prescribes
were convicted to object conspiracy Defendants’ of anyone who Huntingdon, to physical disruption a cause “(1) the causes to be used ... uses or intentionally to enterprise, an animal in interstate or for- any facility mail or property.” cause the loss of damage or purpose the of caus- commerce for eign Majority Op. support at Part V.A. As to the function- disruption ing physical statement, to majority the refers back this enterprise; and ing of an animal opinion, the in which portion an earlier (2) damages or causes the intentionally argument it the Defendants’ addresses (including animals any property incorrectly loss of in- District Court that the records) animal enter- by used the or jury on the elements of the structed the to do so.” conspires or prise, charge. AEPA conspiracy to violate the However, portion opinion the of the (2002). 43(a) Accordingly, to § 18 U.S.C. asserts, majority simply which the refers statute, to violate this prove conspiracy a examples support any concrete or without needed to demonstrate the Government record, “government’s that from the agreement an Defendants formed that the object ultimate evidence showed that the func- disruption to the physical to “cause[ ] physical was to cause a enterprise” and to tioning of an animal disruption jury instruction de- any prop- the loss of “damage[ cause[ ] or] —which normal fined as ‘interference with the by enterprise,” ... the animal erty used Hun- activity’ or course business specific had the that each Defendant —at damage Hunting- tingdon resulting agreement.18 further this intent to at Part I fail to Majority Op. don.” IV. majority proving a agree I upon by relied see how the evidence general, requires the Gov- conspiracy, majori- and recounted Government agreement among an ernment to establish object that the of the con- ty establishes accomplish goals unlawful group at physical disruption was to cause spiracy part on the of each specific intent Huntingdon. illegal goals, further those see individual to that the contrary, the evidence Majority (quoting at Part V.A. United On Op. (3d McKee, majority throughout opinion describes its 506 F.3d States v. Cir.2007)); nonetheless, primarily a of either conduct prove particu- consists affiliated with establishing companies was directed type conspiracy requires lar an investment bank- prohibited by Huntingdon a as goals that the were ones —such Inc.), is, a only ing company (Stephens, pharma- can goal law. That a be specific (Chiron), an ceutical client insurance bro- par- unlawful in reference to considered (Deloitte (Marsh, Inc.), Here, prohibition ker auditor prohibition. ticular (2002) 43(d)(1)(A) (defining § "animal enter- dispute parties do not that the Internet 18. The facility qualifies enterprise in interstate commerce prise” as a "commercial ... meets the definition of testing”). ... or research!] uses animals for enterprise. See 18 U.S.C. an animal Touche) employees Notably, & the time the Defendants —and fhose Dillenback, Sally Marion companies' e.g., prosecuted, were the AEPA did not crimi- — Harlos, “illegal and Robert ac- nalize employees harassment of of an ani- —or tivity” very general spe- in a sense. More enterprise mal employees of companies *33 cifically, highlight examples, to a few affiliated with an animal enterprise. Rath- majority discusses “a massive direct action er, Congress in 2006 amended the statute Inc., campaign” targeted Stephens, at to punishment authorize anyone for who: protest which involved a with “hundreds of any “uses ... facility of interstate or attempting Stephens’s, activists to access foreign commerce— simultaneously repeatedly website and (1) purpose for the damaging of or down”; an to it effort shut “a of interfering with operations of approximately twenty people at a New an enterprise; animal and Touche,” during York office of Deloitte and (2) in connection purpose— with such flyers” “protestors which threw and stickers”; plastered “chanted and (A) intentionally damages or Mondays” coordination of “Black Fax tar- any causes the loss of real or geted “Stephens, Inc. Bank and of New personal property (including York”; “the extensive use of en- various records) animals or by used cryption programs devices and used to animal enterprise, any or real incriminating erase data from De- [certain personal or property a per- of drives”; computer hard fendants’] son or entity having a connec- publication personal of “the information of to, with, relationship tion or Huntingdon employees companies as- transactions with an animal with Huntingdon purpose sociated for the enterprise; harassment, intimidation, of encouraging (B) intentionally places a person in and threats.” IWhile of course do not of, reasonable fear of the death conduct, type condone this of I and do not or bodily injury serious to that dispute this evidence sufficed to con- person, a member of the imme- vict the various Defendants on the inter- family diate ... person, of that stalking state and the telecommunications or a spouse partner or intimate counts, harassment I any fail to see evi- by of that person a course of agreement dence of an physical cause threats, involving conduct acts disruption Huntingdon opposed to —-as vandalism, property dam- other non-animal enterprise companies af- age, trespass, criminal harass- with Huntingdon filiated to cause —or ment, intimidation; or or damage or property loss to used Hun- (C) tingdon.19 conspires attempts or to do so.” Perhaps agreement specific examples targeting best evidence of an of the Defendants majority to violate the AEPA that the cites is Huntingdon, nothing this reference is more "posts coordinating its reference to electronic unsupported than an characterization of the goal flooding civil disobedience with the evidence that the Government now offers of servers, machines, Huntingdon fax Moreover, presented what it at trial. even if phones, companies as well as those of affiliat- support targeting Huntingdon’s record Huntingdon.” Majority Op. ed with at Part servers, machines, existed, phones fax stronger III.A.2. This evidence is than the rest language this conduct is hard to fit within the actually because it conduct involves directed AEPA, prohibits causing physi- which opposed only par- third disruption disruption. cal not an electronic any ties. But without cite to the record or added). clearly re- (2006) specific intent 43(a) finding (emphasis § 18 U.S.C. of violat- convict the Defendants quired to act allows lia- the amended Significantly, Therefore, it is not ing this statute.20 causing damage upon premised bility to be illegal engage intent to enough to show entity, any person, property to the rather, actions; the Government needed an animal enter- a connection having that, goal intent to further a specific prove or intimi- threatening, harassing, prise the AEPA accomplished, would violate if Additionally, the person. dating any such charged convict for the order to require act does amended But, to the lack of due Count One. disruption” and “physical cause defendant demonstrating the Defendants’ evidence op- “interfering” with prohibits instead physical dis- to facilitate the specific intent *34 I enterprise. Thus an animal of erations damage proper- to or loss of ruption of and case that the Government’s acknowledge Huntingdon, majority relies ty used be much would these Defendants against about the De- only general statements on under the they prosecuted if were stronger activity. example, For illegal fendants’ However, of the AEPA. current version Kjonaas that violated the majority states that the Defen- of the AEPA the version in and through his “involvement AEPA violating did not charged with dants were illegal of instances] of [more coordination opera- interference with prohibit mere possibly could recount activity than we nor did it enterprise animal tions of an here”; in “instrumental Gazzola was employ- companies and targeting proscribe illegal of planning and execution SHAC’s with an animal affiliated ees that were activities,” il- having “repeatedly employed therefore, and, proof that enterprise part strategy of the legal tactics” as type of con- engaged this Defendants Conroy “instigat- Huntingdon; close down for a basis convict- was not sufficient duct imminent, activity” by posting illegal ed the AEPA. ing them under dis- regarding civil electronic information in the context majority discusses As the website; Stepanian obedience on SHAC’s arguments, “De- vagueness of the void evidence “provided strong circumstantial intending to charged were fendants illegal of planning of his execution to the function- disruption physical cause activity” based on conversation a and to cause enterprise animal ing of an Kjonaas told he during Stepanian which $10,000.” exceeding damages economic over not share information could I Part While Majority Op. III.A.1. a cam- “coordinated SHAC phone; Harper add, that the AEPA precise, Seattle,” “pleasure his to be indicated paign would successes,” physical “gave speeches” an intent to cause requires with SHAC’s both enterprise and faxes” and “wrote animal on how to “black disruption to the send militant he of the animal an editorial which endorsed property loss of damage or action”21; $10,000), illegal Fullmer “coordinated at least (amounting to enterprise Majority Op. at Part necessary to demonstrate constitution.” Specific intent is 20. Nonetheless, majority the AEPA and violation is finds a substantive of III.A.2. any sort. prove conspiracy a required provide "does circumstan- Harper’s conduct 469; Salinas, 65, 118 S.Ct. 522 U.S. See jury could have from which tial evidence 88, Wexler, F.2d 90-91 v. United States involved reasonably inferred Cir.1988). (3d AEPA.” Id. In to violate the majority’s “Har- my view the statement “Harper’s per- majority concedes 21. The the line per’s personal conduct does cross not the line of ille- does cross sonal conduct illegality” distinguish does not him from simply on punish gality; him [and] is likewise because there the other Defendants political speeches would run afoul basis of his via a protest activity on behalf board,” ELKADRAWY, Appellant/Cross- Emad in- message provided
Yahoo which Appellee transmitting formation black faxes about Inc. and Bank of York. Stephens, New v. course, at Part III.A.2. Majority Op. Of GROUP, INC., VANGUARD Government, majority, and not the Appellee/Cross-Appellant. at fault for this lack of evidence of the specific Defendants’ intent to violate the 09-1105, Nos. 09-1206.
AEPA because it failed to the nec- adduce United Appeals, States Court of essary purpose evidence of intent this Third Circuit. at trial. Submitted Under Third Circuit sum, even when the evidence is 34.1(a) Sept. LAR 2009. light viewed in the most favorable to the Government, simply it does not establish Opinion Filed: Oct. agree-
that the Defendants entered into an
ment, which, purpose if accom-
plished, statutory would violate the provi- AEPA, that they
sions likewise specific par-
had the intent to further this goal.
ticular the Government’s evi- While prove
dence tended to that the Defendants together
conspired put pres- economic on Huntingdon
sure to close its facilities
by targeting companies did business Huntingdon, employ- as well as their
ees, goal through and furthered this harassment,
campaign of intimidation and prove
the Government’s evidence did not agreement physical disruption to cause damage property it reason,
used. For this I would reverse One,
each Defendant’s conviction on Count
because no rational trier of fact could have
found essential elements of the crime conspiracy beyond to violate the AEPA
a reasonable doubt. no direct evidence that the other Defendants sufficient circumstantial evidence to allow a "expressly agreed participate jury in the con- to infer a to violate the AEPA spiracy goals." part further its unlawful Ma- on the or the other Defen-
jority Op. disagree at Part I that there is V.A. dants.