*1 circumstances of of the the individual Foont,
case,” America, UNITED 93 F.3d at none of STATES of Appellee, the cases cited Chhabra involved facts paralleling those here. above, in
As Part II.A. discussed TURNER, Harold Defendant-Appellant. found, alia, correctly district court inter No. 11-196-cr. that Chhabra had immi- expert consulted gration in January counsel 2003 and was United States Court of Appeals, at that advised time that the tax evasion to Second Circuit. pleading guilty
which he was an ag- was May Argued: 2012. that, gravated felony even if did not he Decided: June 2013. receive sentence that included incarcera- tion, subject him would to deportation.
See,
(“Chha-
e.g.,
bra was aware of the potential immigration prior
issues to the ... acceptance of his 2003.”).
guilty plea in February light of knowledge state of Chhabra’s ability
2003—and his at that time to inform judge
the district that because his de-
portation plead concerns he did not towish to the guilty prior judge’s acceptance — plea guilty, no see abuse of
discretion the court’s conclusion that Petition,
Chhabra’s Coram Nobis which
was filed until untimely.
CONCLUSION have
We considered all of Chhabra’s
arguments support of the merit and petition of his
timeliness found have
them to be without merit. The judgment court district is affirmed. *2 (Ronald Russo,
Richard H. Dolan G. Wikstrom, Stone, David Harvey M. Eliza- Katz, beth Wolstein & David J. on the briefs), LLP, Schlam Stone & Dolan New *3 York, NY, for Defendant-Appellant. R. Ridgway, William Assistant United (Manish Attorney Shah, States S. Assis- brief), tant Attorney, United States on the for Patrick Fitzgerald, J.
Attorney for the Northern Illi- District of nois, IL, Chicago, for Appellee. LIVINGSTON, Before: POOLER and COGAN, Judges, Circuit District Judge *.
Judge POOLER in a separate dissents opinion.
LIVINGSTON, Judge: Circuit On June Harold Turner publish- a blog post declaring ed that three Sev- judges enth Circuit deserved to die for their recent decision that the Second apply Amendment did not to the states: they If get are allowed to away with by surviving, Judges other will act way. same These deserve to be made an example such of as to send a message judiciary: Obey to the entire the Consti- tution or die. lengthy commentary declared judges
that the blood of these three would “replenish liberty,” the tree of judges get “didn’t the hint” sent gunman family who had murdered the judge Chicago, they another federal willing had not “faced REAL free men to up walk kill them and them for their disobedience,” defiance and rul- their * York, Judge Cogan, sitting by designation. Brian M. the United States District Court for the Eastern District of New rallies, as that of such at national speak cunning as to de- sleazy and “so
ing was d’Al- Congress in Coeur Aryan World response,” serve the ultimate result, Bu- the Federal ene, As a The next Idaho. killed.” to be “deserve (“FBI”) contacted Investigation work reau of photographs, posted Turner morning he would each of to find out whether addresses, numbers for Turner room acts he map any indicat- violent along report willing judges, three in which occur. the courthouse learned were about location of ing the worked, photograph and a agreed. out “Anti-truck point building modified provid- 2003 and Between barriers.” bomb *4 information, helpful FBI with some ed the of Turner juryA convicted instance, extremists who on reporting, for Frank East- Judges to assault murder acts of proposed and his website visited Bauer, Pos- and Richard erbrook, William admon- ignored repeated Turner violence. intimidate, impede, intent ner with the Inter- his violent regarding own ishments performance in the them with or interfere however, the FBI termi- and speech, net them or to retaliate of their duties for what relationship in 2007 the nated of official performance their account of on at tri- FBI handler characterized Turner’s is- appeal presents several This duties. issues.” al as “serious control review, the including whether sues for our supported by sufficient was jury’s verdict Judges About B. Turner’s Statements We a true threat violence. evidence of Easterbrook, Bauer, Posner and sufficient, that was that the evidence hold regarding instructed properly was later, 2009—the on June years Two threat,” that Turner was not and a “true Court of day the Seventh Circuit same any error. We affirm. by prejudiced National As- handed down Appeals Rifle Chicago, v. 567 America sociation of
Background
(7th Cir.2009),
Mc-
sub nom.
rev’d
—
-,
Chicago,
Donald v.
I. Facts
(2010)
3020,
knew that name had by been used Church for years, could KEEP government The especially these —and ruthless, name the church cunning, three because who un- had used —are years it for trustworthy, disloyal, unpatriotic, didn’t challenge deceit- ful Trademark filing! scum. Their entire reason for exist- ing themselves, power is accrue unto By challenging the Trademark everything. over registration, people who had used only thing that has ever stood years the name for LOST IT. way achieving pow- of their ultimate That decision lead to an order [sic ] er the fact that People We The have a lower court for the Church to “surren- *5 Now, guns. very much in jeopar- der its Bibles for destruction because dy- they infringed on the trademark” given lies, cheats, Government manipulates, to the fraudsters. outright disobeys twists and the su- thereafter, Shortly a gunman entered preme founding law and documents of the home of that Judge lower court and not, they this land because have in our slaughtered the Judge’s mother and lifetime, REAL willing faced free men Apparently, husband. the 7th U.S. Cir- up walk to them kill and them for their cuit get court didn’t the hint after those defiance and disobedience. killings. It appears another lesson is Jefferson, Thomas one of our Found- needed. Fathers, ing told liberty us “The tree of Judges These are traitors to the Unit- must be replenished from time to time They ed States of America. have inten- tyrants with the blood of patriots.” and tionally violated the They Constitution. It is time to replenish the tree! have now also intentionally ignored a Let me say plainly: be the first to this major ruling by the Supreme Judges These deserve to be killed. Court. Their blood replenish will tree If get away are allowed to liberty. A price pay small to assure this surviving, Judges other act will freedom for millions. way. the same Turner then referred to the infamous Judges These deserve to made such murders of United States District Court an example of as to send a message to Judge Joan Lefkow’s husband and mother judiciary: Obey the entire the Constitu- Judge in Chicago Lefkow’s home on Feb- tion or die. ruary 2005, which he connected to Judge role in Lefkow’s a court case involv- day, posted The next Turner “up- an ing supremacist a white organization, the date” stating: “Judges official work Creator,” “World Church of the and its map addresses and a of the area are be- leader, Matthew Hale: low. Their home addresses and maps will ” This is not the politically-motivat- first follow soon. Behold these devils....
ed trash to come out of the Seventh photo- U.S. What followed were the names and fact, Circuit Court of Appeals. graphs it was Judges United States Circuit intentions infer Turner’s Bauer, might reader Easterbrook, and William Frank Immediately preceding post. writing Posner; for the room numbers Richard Easterbrook, post about within Turner’s chambers judges’ each of Bauer, Posner, was an example, and McKinley Dirksen Everett on June which published also post, other map of Courthouse; photograph and and legislator and accused Connecticut Chicago. On location the courthouse’s (OSE) Ethics Office State red Connecticut Turner drew photograph building’s is our intent and declared: “It tyranny wrote, barri “Anti-truck bomb arrows these indi action direct to foment of these bar ers,” the location to illustrate beastly govern These personally.2 viduals building.1 around riers example an be made officials should ment post, published day government: warning to others of as a an an email from received Judge Posner or die.” Obey the Constitution Against Hate called Citizens organization continued, attorney, police any “If state website a link to Turner’s that contained they’re going or court thinks department might Judge suggested Posner this; I suspect uppity with us about get Posner, it. Judge a look at want to take put them down enough bullets we have safety, the Unit- notified concerned for Further, announced post too.” Turner’s Turner’s Service of Marshals ed States “releas[e] that week later he would time, one of At the same statements. of the Senator addresses home blog Judge Bauer’s clerks discovered Bill 1098 as Assemblyman who introduced Chief Judge Bauer. post and informed of Thomas K. the home well as address *6 learned of Judge Easterbrook words, Turner’s from the OSE.” In Jones thereafter, Judge Bauer shortly when post they’re proud are so of what “[I]f chambers Judge Easterbrook’s strode into every mind if they shouldn’t doing, [sic ] “was him. His immediate reaction to show A times they live.” one where knows kill me.” somebody was the after added tamped update was judges acutely only all three Not were simply: “Officer stated noon of June Judge Lefkow’s of murder of aware the Po Capitol Boyle of the Connecticut State (they Judge all mother and husband knew story. regarding this lice called just also knew judges the personally), Lefkow the they are concerned about ‘Com Seems by Turner— mentioned individual ’ tyrants are the mentary below. Looks of soli- been convicted Matthew Hale—had Good.” [sic ]. worried Judge Lefkow. See citing the murder Hale, that he also declared generally States Turner’s website United curiam). Cir.2006) (7th major player (per “going “every after” to in- “I intend meltdown.” financial C. The Context Statements “Vicious, Turner wrote. revenge,” cite brutal, malice afore- savage, revenge with three had heard None of ever why blog his thought.” explained blog post. reading his of Turner before seriously by his taken posts should be readily blog, accessible on posts Other targets: however, which a provided context from actually post his ar- before that home addresses promised posting in this
1. Turner 25, 2009. rest on June maps follow. FBI would addresses and Tur- agents recovered a from later document that when he wrote admitted at trial computer that residential 2. Turner ner’s consolidated intent,” intent. he meant own judges, Turner did "our the three but addresses for I can’t legally killing, While undertake to a Utah state court official judge’s after a may just say I able to him, MAY—be ruling angered stated, “[M]aybe I — enough right things, enough of ought to my power abuse give out [the right people, happen: to make it judge’s] home Having ] done address.f who People everything have lost on ac- things such the past, I know this is an you. People count of whose children way effective to cause otherwise immune everything you. have lost on account seriously servants to rethink how People nothing hunting to lose by they use power lent to them We you you. down and I murdering am The People.” email, In the second sent to pounding to be them going with informa- an individual working at the New York you tion day night. about On and Times, Turner wrote: on, after week week after Sooner week. perpetrator of [certain] murders later, some of them gonna snap are was later killed in a confrontation with and you get will dead. police. So there way was no to ever certainly IWhile would use never prove whether he by my was motivated endeavor, blog for such an my eight Hence, remarks. I prose- could not be years on the radio and on internet cuted. has me in touch with gotten enough of That taught my posi- incident me how right people get it done. I know tion on radio could be utilized. I Today, get how to it done. Federal District power use that to confront what I see as Judge Humphrey Joan Lefkow in Chica- injustice. late, Of I have naming been go proof. key players in the financial melt- Judge Lefkow made a in court ruling down as people “worthy being dealt opined I “worthy made her later, with.” Sooner or perhaps some that, death.” After I said went someone distraught who everything lost out and murdered her husband bankers, the shyster may go decide to mother inside the Judges Chicago house. after them. *7 You new types.I’ll world order If happens.I that won’t shed talking be about YOU next. tear.
Think this is terrorism? You ain’t
seen yet. terrorism But I think it’s II. History Procedural
coming. by Two emails sent 22, 2009, intro- July Turner was indicted on at trial light duced shed further on “threatening] Tur- to assault and murder three names, purpose posting ner’s in photo- judges United States with the intent graphs, and Judges intimidate, work addresses of impede, and interfere with such Easterbrook, Bauer, and Both judges Posner. while in engaged performance emails were sent in late April ap- of official duties and with intent to retali proximately five pub- against weeks before Turner ate judges such on account of the lished the statements at the of performance duties,” center of official in violation email, 115(a)(1)(B).3 case. The first § which Turner sent of 18 U.S.C. 115(a)(1)(B) provides § 3. 18 U.S.C. judge in rele- fere with ... engaged such ... while part: duties, vant performance in the of official assault, ... with to retaliate kidnap, Whoever threatens to intent such ... judge judge ... a performance murder ... account of the on intimidate, duties, impede, intent to punished.... or inter- official shall be per- in the engaged while judges States were Seventh the three victims Because duties, or with official assigned of their formance the case was judges, Circuit Circuit, against the United to retaliate in the Seventh the intent judge to a district perform- Judge Donald account of the on assigned States rather was but Judge of After deliv- Walter, District official duties.” States ance of their E. United Louisiana, instructions, court who the district District of ering these the Western the Northern designation jury: in sitting by to the explained September Illinois. On District vehe- protects Amendment The First motion, Judge Walter upon Turner’s ment, criticism of scathing, and offensive to the East- transferred the case ordered officials, States including United public York. of New ern District that the defen- judges. you find Should mistrials, in trial was held for which he is dant’s statements After two government presented politi- than mere charged were no more August 2010. agents, an may justified FBI testimony you from several then hyperbole cal Marshals States in fact inspector with the United no threat was finding in that Easterbrook, Bauer, Service, Judges however, that a you, I made. instruct as his own Turner served and Posner. the term in as I have defined that Turner admitted witness. principal protected is not these instructions blog question, but posts he wrote the of the United the First Amendment were mere that his statements contended Constitution. States not amount to and did political hyperbole deliberation, After about two hours argued Turner also violence. threat of a unanimous verdict of returned him, their had advised before that the FBI guilty. was terminated relationship 18, 2011, January Turner filed this On blog posts of June statements like his appeal. constitutionally protect- were testi- agents The relevant FBI speech. ed Discussion opined on never
fied rebuttal Turner’s conduct and never legality that the trial appeal, argues On officials. to threaten authorized him he prove evidence was insufficient Easterbrook, Bauer, threatened evidence, Turner At the close meaning of within the and Posner acquittal pursu- judgment for a moved 115(a)(1)(B), engaging in opposed Procedure Rule of Criminal ant to Federal *8 Amendment-protected speech. He First 29, court denied. which the district the court failed to also claims that district jury court instructed The district respect with to jury properly instruct the offense, the elements of the respect to Finally, he main- First Amendment. (1) a threat that “a statement is including improper government tains that various circumstances if it was made under such evidentiary rulings preju- and statements or read- person hearing that a reasonable each of these diced the trial. We address with its the statement and familiar ing in turn. contentions it as a serious context would understand injury;” inflict of an intent to expression Sufficiency I. the Evidence (2) only they if that could convict and argues principally doubt that Tur- beyond found a reasonable prove to in- at trial was insufficient impede, intent to evidence ner “acted with the Easterbrook, that he threatened timidate, the United or interfere with
419
Bauer,
Posner,
that,
because his
dent
review of the record to determine
only reasonably
“could
blog posting
whether the facts
jury
as found
opinion”
not a true
political
read[ ]
establish the core constitutional fact” of a
violence,
protected by
it
threat of
Hanna,
true threat. United States v.
293
disagree.
First Amendment. We
(9th
1080,
Cir.2002).
F.3d
1088
Other
courts, however, have conducted sufficien-
reviewing
a conviction for sufficiency
cy
review this context without reference
evidence,
we
“view the evidence
See,
to the constitutional facts doctrine.
light
govern-
most favorable to the
e.g.,
Jeffries,
473,
United States v.
ment,
692 F.3d
drawing all reasonable inferences in
Cir.2012)
(6th
(reviewing a
government’s
favor.”
threats
(2d Cir.2010).
215,
conviction
sufficiency
599 F.3d
without reference
Sabhnani
general,
“In
to
given writing
doctrine);
‘whether
con-
the constitutional facts
Unit-
Parr,
stitutes
threat is an issue of fact for the
491,
ed States v.
545 F.3d
496-97
”
Davila,
jury,’
(7th
trial
Cir.2008) (same).
United States v.
Moreover, at least
(2d Cir.2006)
(quoting
Unit-
one noted commentator has taken the view
Malik,
ed States v.
16 F.3d
appellate
that “federal
courts have authori-
Cir.1994)) (brackets omitted);
see also ty to
independent
exercise
judgment with
Carrier,
United States v.
672 F.2d
306 respect
adjudicative
facts decisive of
(2d Cir.1982) (“Most
[involving
cases
al-
application,”
constitutional law
but that “it
leged
are within a
expanse
threats]
broad
goes too far to convert
competence
varying
patterns
fact
which may not be
duty,”
into a
even in the First Amendment
law,
resolved as a matter of
but should be
Henry
context.
P. Monaghan, Constitu-
left
affirm
jury.”),
and we therefore
Review,
tional
Fact
85 Colum. L.Rev.
the conviction if “the evidence at trial was
(1985);
Fallon, Jr.,
see also Richard H.
...
to permit
sufficient
a reasonable
John F. Manning, Daniel J. Meltzer &
that
find
conduct
[Turner’s]
constituted
Shapiro,
David L.
Hart & Wechsler’s The
Davila,
a threat.”
420 disruption the and ‘from fear of violence’ Turner’s conduct was
established,
that
and
v.
Virginia
engenders! ]’....”
that
fear
First Amendment.
by the
unprotected
1536,
Black,
123 S.Ct.
538 U.S.
(2003) (quoting R.A.V. v.
to
en
argues that he
Turner
first
conduct
test
This Circuit’s
whether
pure
constitutionally protected
gaged in
objective
threat “is an
to a true
amounts
of his edito
speech:
expression
an
political
ordinary,
an
rea
namely, whether
one—
opinion
the Seventh Circuit’s
rial
about
with the
who is familiar
recipient
sonable
respect
to the Second
decision with
in
would
of the [communication]
context
Tur
no doubt that
We have
Davila, Amendment.
injury.”
terpret
it as
to con
entitled
Malik,
constitutionally
ner was
F.3d at
(quoting
461 F.3d
omitted).4
disparage
Seventh Circuit.
demn and
49) (internal
mark
quotation
unin
should be
on
issues
“[D]ebate
true
where
Prohibitions
threats —even
on
hibited, robust,
open, and
and wide
carrying
intention of
has no
speaker
vehement, caustic,
include
may
from the
well
‘protect[ ]
them out—“
individuals
speech
qualify as a true
necessary” for
post-dates,
to
decision in Davila
4. This Court’s
Black,
(de-
address,
threat)
Virginia
Jeffries,
v.
at 479-80
692 F.3d
but did not
1536,
155 L.Ed.2d
specific
123 S.Ct.
clining
require
intent in
defini-
to
(2003),
Supreme Court stated
threat)
which
v.
tion of a true
"
encompass
state-
those
'[t]rue
threats’
White,
(4th Cir.2012)
508-09
speaker
communi-
means to
ments where the
(same).
argument based
makes
on
no
expression
to com-
of an intent
cate a serious
poses
and this
no occasion
this division
case
particular
violence to a
an act of unlawful
mit
assuming, arguendo, that
Even
it.
address
Id. at
group
of individuals.”
individual
“true threats”
alter the
Black did
definition
Black,
dis-
Since
some
421
Blue,
unpleasantly sharp
(Scranton)
sometimes
attacks on
The Times-Tribune
Oct.
v. 23,
Watts
government
officials.”
http://thetimes-tribune.com/
States,
705, 708,
United
394 U.S.
89 S.Ct.
opinion/editorials-columns/roderick-
(1969)
1399,
curiam)
22 L.Ed.2d
(per
random/kanjorski-ponders-nuts-bolts-from-
Sullivan,
(quoting New York Times
v.Co.
Although
blue-1.1052739.
lack
the nec
710,
376 U.S.
S.Ct.
L.Ed.2d
essary context to
many
evaluate
(1964)) (internal quotation
mark omit- proffered statements, none of the brief or
ted). But
political
Turner’s
criticism was
off-the-cuff remarks
cited
Turner rises
Rather,
the basis for his conviction.
nearly to the seriousness of
ex
Turner’s
he was convicted of doing something
tended discussion of killing Judges Easter-
more —of
the lives of three
brook, Bauer, and Posner.5
ifAnd Turner
intent,
115(a)(1)(B)
judges
§
with the
as
were able to furnish examples of other
provides,
intimidate,
impede,
“to
or inter-
threats
apparently
as
serious as his attack
fere with
judge[s]
such
... while en- on these judges, those threats would also
gaged in the performance of official exceed the ambit of the First Amend
115(a)(1)(B).
duties.” 18 U.S.C.
As al-
protections
ment’s
exonerate Turner.
—not
stated,
ready
prohibiting threats —both to
The full context of Turner’s remarks
preserve citizens from fear and “from the
gravity
reveals a
readily distinguishable
possibility that the threatened violence will
from
hyperbole
mere
or common public
Black,
occur,”
359-60,
538 U.S. at
discourse.
blog
(internal
post, Turner not
quotation
S.Ct. 1536
marks omit-
ted)
only wrote that these
three
should
constitutionally permissible. The
—is
killed,
explained
but also
sufficient,
Judge
evidence was more than
how
more-
over,
for a
Lefkow
against
to conclude that
had ruled
Matt Hale and
how,
“political
“[sjhortly thereafter,
statements were not
hyperbole,”
a gunman en-
contended,
as he
but violent
threats
tered the home of that lower court Judge
against
judges’
lives.
and slaughtered
Judge’s
mother and
husband. Apparently, the 7th U.S. Circuit
per-
contends
no reasonable
court
get
didn’t
the hint after
kill-
those
son could have interpreted his statements
ings.
It appears another lesson is need-
as a threat because “[Turner’s] kind of talk
Easterbrook, Bauer,
ed.”
permeates public
Appellant’s
discourse.”
Posner were of course familiar with those
Br. at 41. He
examples,
cites
including
murders,
Lefkow,
with Judge
and with
congressman
former
quoted
who was
in a
subsequent
Matt Hale’s
prosecution for
newspaper
local
saying
gubernato-
of a
candidate,
soliciting someone to kill Judge
rial
running
“Instead of
Lefkow.
gov-
Florida, they
ernor of
Such serious references
ought to
him
to actual acts of
have
and shoot him. Put him
violence
apparent
the wall
carried out in
retribution
See
and shoot him.”
Christopher Kelly,
judge’s
J.
for a
clearly
decision would
allow a
‘Nuts,’
Kanjorski Ponders
Bolts
juror
reasonable
to conclude that Turner’s
from
examples
5.
provides
get my
in his
sights
brief
want to
is L.BJ.” —at which
Watts,
706,
seem more akin
point
to the facts in
laughed.
the crowd
Id. at
89 S.Ct.
1399;
Supreme
89 S.Ct.
in which the
see id. at
may properly facially unequiv- that threaten munications /., concur- (Mulligan, at 1029 But see id. immediate, unconditional, ocal, specific (“I obi- accept Judge Oakes’s cannot ring) with consistent injury may prohibited be requirement proposed [T]he ter dicta.... contrary to the the First Amendment —is immediate, imminent of that the threat be conclusion Black. Supreme Court’s to me to be injury seems unconditional can burning nor the that cross by the statute Black Court held neither required Amendment.”). argues, threat, upon Turner depending First a constitute that all effect, requires Kelner circumstances, that “[i]n- because surrounding threats, prohibiting the statute whatever constitutionally proscriba- timidation in the them, conditions before satisfy must these true type is a of ble sense of word with the they may punished consistent be threat, a threat to speaker a directs where First Amendment. persons of with the group a or victim in fear of bodi- placing not de- intent of say it to that this does
Suffice
cases,
360,
affirmed con-
at
ly
which have
harm or death.” 538 U.S.
scribe our
But,
both condi-
for threats that were
Supreme
victions
as the
Court
S.Ct. 1536.
Malik,
16 F.3d
inexplicit.
burning
tional and
cross does not
acknowledged, “a
45,
a threat con-
example, we affirmed
for
convey message
of intimi-
inevitably
which
pursuant to 18 U.S.C.
viction
few,
dation,”
though
any, messages
if
even
threatening communica-
mailing
prohibits
ominous. Id. at
conclude conduct de novo. States v. instructions United pur- a true threat for First Amendment (2d Cir.2011). Kozeny, 667 F.3d poses. “A if it jury instruction is erroneous mis Jury II. Instructions jury legal leads the as to the correct stan adequately inform the argues Turner next the district dard does Bahel, jury by failing jury court erred to instruct the on the law.” United States v. 115(a)(1)(B), argues properly § 8. Turner also that the indictment was and the in- constructively regarding amended from a threats offense structed the elements of that stat- or, alternatively, including requirements of a true to an incitement offense ute— threat, II, prejudicial there was a variance between the see Part The evidence trial infra. proof indict- than sufficient to establish Turner's indictment and the at trial. The was more Hence, ment, however, 115(a)(1)(B). charged with threat- violation of ening federal in violation of 18 U.S.C. claim is without merit. (2d Cir.2011) (internal however, a you, I made. instruct omitted). I the term threat as have defined marks quotation by protected instructions is not these in ease, district court In this the First Amendment of the United jury: structed States Constitution. [Wjhether statement is particular objective an stan- governed threat is reflect the Although these instructions is, a threat if That a statement is dard. cases, see, prior outlined in test we have such circumstances it was made under Davila, F.3d at Turner con- e.g., person hearing reasonable that a specified additional ele- tends that Kelner familiar with reading the statement and that are neces- of a threat offense ments it as a its context would understand namely, that it “so sary for conviction: of an intent to inflict expression serious immediate, unconditional, unequivocal, explicitly injury. an An absence threatened, as to specific as to the threatening language preclude does not convey gravity purpose and imminent *15 you finding from the statement be Kelner, 534 prospect of execution....” threat. at 1027. have affirmed convic- F.2d We necessary government It is not for the jury in instructed with tions which the was prove that the defendant intended to Malik, language, 16 F.3d at such see threat, carry out the that the defendant an in- but we have never held that such threat, carry ability had the out the In- constitutionally required. struction communicated the or that the defendant deed, in itself —where we affirmed Kelner in- to the victims. The relevant portion relevant of the the conviction—the tent is the intent to communicate jury only instruction stated that “[m]ere threat. political hyperbole expression opinion charged determining whether threat,” or discussion does not constitute threat, you statements constitute a justified in jury and that would be in should consider the context which in if finding that no threat was fact made they were made. Written words or “no more than an the statements were and their reasonable connota- phrases indignant stating or extreme method of ” character as tions take their Kelner, F.2d political opposition.... in or harmless from the context which (internal omitted) quotation at 1025 marks used, they are measured the common (alteration in original). district they in experience society which in contained court’s instruction this case the cir- published. are This includes therefore nearly language. identical We they are uttered as cumstances which conclude that the district court did not err well as the circumstances of the language by omitting requested Kelner who uttered them. from its instructions. argues vehe- Turner also the dis protects
The First Amendment ment, by charging the scathing, plainly and offensive criticism of trict court erred officials, jurors only they “may” than including United States —rather (cid:127) if judges. you acquit find that the defen- found Should “must”— political hyperbole. mere dant’s statements for which he is statements to be contest that he failed to charged politi- were no more than mere Turner does not objection and that our hyperbole you may justified cal then raise this below plain er- finding that no threat was in fact review is therefore restricted may exercise our A. Evidence and Accordingly, we Government Statements ror. only Regarding to notice a forfeited error Turner’s Audience discretion error, in fact it was plain, there was where argues government im- rights, substantial it affected Turner’s permissibly suggested jury, to the both fairness, seriously affects the the error questioning witnesses and in its summa judicial integrity, public reputation tion, that Turner was inciting large audi Cain, United States v. proceedings. followers, ence of racist which Turner con Cir.2012). (2d 271, 287 bur “[T]he tends is irrelevant to whether he made a relief for establishing den of entitlement to true threat in violation of 18 U.S.C. plain claiming error is on the defendant 115(a)(1)(B). Because Turner did not Dominguez it....” United States v. Beni trial, object at we review for plain error. tez, 124 S.Ct. Williams, See United States v. 690 F.3d (2004). L.Ed.2d 157 (2d Cir.2012); United States v. Si mels, 161, 168 Cir.2011). assuming arguendo Even error, We find no much plain less by using district court erred the word degree error. The to which Turner’s “may” portion rather than “must” in this widely statements were read and noted charge, plain. of its this error was publicly relevant to whether Turner preju Turner cannot show that he was intended for his threats to reach—and by any diced error. The district court’s Easterbrook, thus to properly *16 other instructions defined the ele intimidate — Bauer, emails, April and Posner. necessary jury ments for the to find a true Turner himself drew the link between convict, jury threat. To therefore had perceived ability audience and his influ to conclude that Turner’s statements public “position ence officials: his on the reasonably interpreted by would be some him gave “power” radio” to “confront hearing reading one them and familiar injustice” what I see as and to “cause with their context as a expression serious immune otherwise servants to seri injury, of an intent to inflict that he ously they power rethink how use the lent intentionally made these statements to in by People.” to them TheWe timidate or retaliate judges. findings satisfy
These are sufficient to Moreover, himself, it was Turner not the First Amendment. government, emphasized who in his status supremacist community, thereby the white therefore that the We conclude district placing the nature of his audience issue.9 court’s instructions did not contain Miller, See States v. United prejudicial error. Cir.1973) (holding govern that questions ment’s on cross-examination and Arguments III. Other during regarding remarks summation de in supple- Both his counseled and in a fendant’s association a team of with rob brief, pro mental se Turner raises create unfair prejudice various bers did not be arguments challenging other his convic- cause defendant had in issue the “placed tion. that none requires scope We conclude re- of his association” with the robbers examination). versal. In the course during direct gov- open[ed] 9. The district court ordered that defendant the door.” Turner un- deniably "opened ernment could not reference Turner's mem- the door” to the line of now, bership organization inquiry belatedly, objects. in a racist “unless the to which he in-between. But speech, anything part on mounting a defense based you say what I think or ad- the minute previously [“]do had agents that FBI claim die,[”] protected not you’re gonna that’s of the sort he blog postings him that vised judge that’s what the will speech. consti- And 2009 were on June posted threats, you, by that as defined dur- instruct Turner testified tutionally protected, instructions, protected not “my [are] show was these that examination ing direct You have the First Amendment. don’t history that had a groups ... with popular analysis at all. part your that ... to let [such t]he violence doing terrible Klan, Nations, Aryan [and] Klux K[]u government “[v]ictims also said FBI claimed that the Nazis.” And punctuation and verb don’t care about celebrity or—I don’t him “as viewed tense,” average person and that “how an star, I’m not a because say a star want would understand if [these words] celebrity kind of status” but I had subject of that which was writ- were Indeed, groups. supremacist among white only thing ten” was “the matters.” owing to of Turner the FBI’s recruitment argues these state groups radical was the his association “completely wrong.” He did ments were defense, to Tur- according “center” of his however, trial, object at so our review counsel, referenced both and was ner’s Williams, plain error. is restricted to See specifically, testimony and exhibits— F.3d at 75. We find none here. Even ties mentioning Turner’s FBI documents assuming arguendo government’s part were supremacists to white —that the ele perfectly comments did not state Turner himself case. Since the defense 115(a)(1)(B) relevant ments of and the associations, to these attention first drew these re principles, First Amendment government hardly he can accuse the defendant sub “cause[ ] marks did not addressing jury by later prejudicing the trial prejudice by infecting so stantial no Accordingly, improprie- we find them. resulting with unfairness as to make the *17 and its ty government’s statements the process.” a denial of due Unit conviction regarding Turner’s audi- use of evidence Carr, 424 F.3d ed States v. ence. Cir.2005). Moreover, the district court jury immediately instructed the properly Regarding B. Government Statements following explicitly the summations and the First Amendment stated, accept the law as I “You must with certain re- Turner next takes issue it in these instructions.” We provide re- by prosecution the marks made in the plain therefore cannot find error Amendment. In its spect to the First regarding the government’s statements summation, jury: government told the the First Amendment. Now, judge instruct expect I the will Easterbrook, Testimony C. on the First you here —one moment Bauer, and Posner Amendment, actually. You’ve heard ease, in this the First Amendment about argues Turner next the district protected speech. is somehow this motion in li- denying court erred in his You’ll from the instruction that notice Easterbrook, preclude Judges mine case. You can’t actually it’s not the Bauer, testifying from because and Posner people. threaten violence testimony would be irrelevant such than substantially prejudicial proba- more you peo- In can criticize country, however, directly argument, is speech, hate love tive. This ple, you can use 115(a)(1)(B) Malik, § apply. Accordingly, precedent. our See foreclosed ruling (affirming comfortably at 49 a conviction for district court’s fell with- 16 F.3d scope in the of its discretion. judge, holding testimony regarding interpreta- judge’s E. Pro Arguments Turner’s Se statements was tion of defendant’s Davila, relevant”); also “highly see brief, supplemental pro se Turner (“[Pjroof of the effect of the F.3d at 305 arguments raises various other attacking highly alleged upon the addressee his conviction and sentence. have con- We (internal quotation marks omit- relevant.” arguments sidered these and find them ted)). merit, exception without with the of his claim of ineffective assistance of counsel. argues Judge
Turner also that Chief Easterbrook’s comment that “there have faced with a claim for “When inef many federal assassinated been fective ap assistance counsel on direct years” any lacked factual basis. past (1) peal, may: decline to hear the say, it to that Turner did not again, Suffice claim, permitting appellant to raise the object, Judge and Chief Easterbrook’s part subsequent petition issue as of a fleeting hardly preju comment could have writ of habeas corpus pursuant to 28 satisfy plain Turner so as to diced (2) 2255; § remand claim U.S.C. to the standard. States v. Zan error See United district for necessary factfinding; court (2d Cir.2012). gan, 677 F.3d (3) claim decide the on the record before Ramos, us.” United States v. D. Not Evidence that the Threats Were (2d Cir.2012) (internal quotation Carried Out omitted). marks Due to our “baseline resolving aversion to ineffectiveness claims Finally, argues that review,” on direct we decline to consider improperly court sustained the district argument ineffective-assistance objections when he government’s relevance (internal quotation at this time. Id. marks Judge attempted to ask Chief Easterbrook omitted). may pursue this claim in “anything happened] whether ever petition corpus for writ of habeas under con blog posting.” a result We 28 U.S.C. 2255. clude, however, that the district court did sustaining its abuse discretion Conclusion government’s objection. per Turner was *18 remaining have considered Turner’s We specific questions— mitted to ask more arguments and find them to be without Judge about whether Easterbrook Chief Having merit. concluded that Turner’s sought protection from the Mar additional by supported conviction was sufficient evi- shals or whether Turner ever tried to com dence, that the district court’s instruc- him. municate with Turner elicited from error, prejudicial tions contained no Bauer, moreover, Judge that no one had that no other reversible error affected the him, government tried to attack and the proceedings, we Affirm Turner’s convic- implied any of the had never tion. actually a been attacked. Whether is, best, ultimately carried out at of POOLER, dissenting: Judge, Circuit marginal relevance to whether the threat indeed, majori- from the place; respectfully
was made in the first I dissent relating sufficiency of speaker ty’s need not even have intended or conclusion that, evidence, because I find as a carry been able to out the threat 430 communication a the context of the law, speech was not with
matter of
115(a)(1)(B)
interpret
injury.”
it as a threat of
would
18 U.S.C.
threat under
true
(quoting
at 420
States
Majority Op.
United
First Amendment.
and the
Cir.2006))
Davila,
298,
v.
305
115(a)(1)(B),
it “makes crimi-
Section
omitted).
(internal
For
quotation marks
inter-
speech, must be
pure
nal a form of
“[ijntimidation in the constitu-
example,
of the First
the commands
preted
tionally
sense of the word is
proscribable
clearly in mind.” Watts
Amendment
threat,
speaker
di-
type of true
where
States,
705, 707, 89 S.Ct.
394 U.S.
United
group
to a
or
of
rects a threat
(1969).
1399,
Although
664
22 L.Ed.2d
placing
with the intent of
the vic-
persons
afforded
vast,
protections
“[t]he
bodily
of
harm or death.”
tim in fear
absolute,
are not
Amendment
First
Black,
360,
To
431
threats),
respective progeny,
and their
of-
threats and advoca
purported
treat
courts
Collins,
protections,
531 fer different Constitutional
Fogel
See
v.
cy as distinct.
(9th Cir.2008);
824,
advocacy
Par
and those afforded to
would have
Planned
F.3d
830
analyzed
speech
v.
less force if we
all
under
Inc.
the
enthood
Columbia/Willamette
of
Activists,
1058,
Advocacy
the “true threats” test.
of
290 F.3d
Am. Coal. of Life
Cir.2002) (“Planned
(9th
force,
of
even if not
Parenthood
use
incitement under
1072
Howell,
II”);
Brandenburg,
place
object
will often
of
(5th Cir.1983).
1258,
advocacy “in
bodily
We must make
fear of
harm or
1260
death,”
category
“constitutionally
of the
of
which would be
an initial determination
analysis
proscribable”
our
lies
intimidation under Black.
under which
be
speech
360,
question turns on
Furthermore, First, determining speech. respect whether to the true threat, “a court must be sure purported category, is a we must threats speech recipient is fearful of the execu speech make sure that the is not instead (or speaker advocacy protected by Brandenburg. tion of the threat (incitement) (true New York Brandenburg speaker’s co-conspirators).”1 and Watts adapted purpose.” necessary reasonably to that We have held that "it is not means 1. Sovie, prove the defendant United States v. the Government to Cir.1997) (internal present ability quotation marks and specific or a had a intent *20 however, threat, omitted). necessary, carry only that he brackets It is out his but intended object purported injury through the of the threat-the a threat of to communicate 432 Nat'l, implied menace as a literal threat.” Operation Rescue Spitzer
ex rel.
v.
Cir.2001).
“Thus,
184,
Majority Op.
(quoting
at 422
F.3d
196
273
(2d Cir.1994))
Malik,
45,
informs someone
person
a
who
16 F.3d
50
generally,
(internal
omitted).
danger
from a third
that he or she is
marks
quotation
threat,
if
made a
even
the
party
“explicit
has not
not have to be
[or]
Threats do
may
fear. This
be
produces
conveyed
grammatical precision
statement
with the
tells the ob
protestor
Majority
true even where a
atOp.
of an Oxford don.”
425.
they
danger
are in
jects
protest
“An
lan
explicitly
absence of
political support for
finding
and further indicates
of a
guage
preclude
does not
In
Malik,
Id.
other
parties.”
the violent third
at 49 (discussing
threat.”2
16 F.3d
876).
words,
of violence or other
may
ambigu
a threat “warns
Speech
18 U.S.C.
speaker
controls.” Planned
injury
harm
will cause
and still
ous as
who
(Kozinski,
II,
at 1089
Parenthood
290 F.3d
constitute a threat.
/.,
contrast, the incitement
dissenting).
In
a
a
principle,
purported
As
second
category
“predictions
involves
or exhorta
must
toward the victim.
threat
be directed
tions to others” to use violence. See Unit
Natl,
Operation
See
Rescue
while, “you
suggests
deserve to die”
Fogel,
Purport
threat.”
531
at
F.3d
830.
However, “rigid
prediction
exhortation.
incitement,
hand,
ed
on the other
is direct
meaning
adherence to the literal
of a com
parties.
Bagdasari
ed toward third
See
regard
munication without
to its reason
an,
(describing advocacy
652
at
F.3d
derived from its ambi
able connotations
”)
“predictions
or exhortations to others
powerless
ence would render the statute
added).
(emphasis
ingenuity
of threateners who
can
mind as clear an
To the extent that speech
ambiguous,
instill
the victim’s
is
injury by
apprehension
impending
“public
an the distinction between
discourse”
300,
Black,
injury
majority
to befall-is
at
304-05.
on whom the
In
as the
injury
notes,
potential
from the
Supreme
"given
concerned with
Court held that
whether,
speaker.
position
context,
I take no
as to
surrounding
burnings may
cross
Black,
after
123 S.Ct.
we
violence,
unprotected
constitute
threats of
de-
subjective
requirement
must read a
intent
into
spite
wholly implicit
nature of the serious
analysis.
Majority Op.
our true threats
See
they convey.” Majority Op.
at 423
420 n. 4.
Black,
345, 357, 363,
(citing
433
case,
is 49. Unlike
these cases
present
communications”
personal
and “direct
personal
Planned Parent
all involved
communications.
See
“highly significant.”
1018;
I,
also
244
at
see
Clai
F.3d
hood
contrast,
Supreme
In
Court has held
at 926-27,
Hardware,
102
borne
language
that even
that seems
(“Since
would im
respondents
3409
S.Ct.
may,
public
part
political
if made in
as
public
ad
liability
basis of
on the
pose
communications, fall under the incitement
contained
predominantly
dress —which
Hardware, speak
category.
In Claiborne
lying
rhetoric
at
charged political
highly
Evers,
organizer
er Charles
as
of a civil-
ap
First Amendment —we
the core of the
rights boycott, spoke
against boycott
out
liability
suggested
this
basis
proach
during
public rallies.
breakers
several
458
care.”).
ugly or
speech,
“Political
extreme
rally,
at
At one
S.Ct. 3409.
be,
may
lies at
as it
sometimes
frightening
boycott
he stated that
breakers would be
process.”
heart of our democratic
“If
“disciplined”; at another he said:
we
II,
at
290 F.3d
Planned Parenthood
in
any
you going
any
catch
of them
J.,
(Reinhardt,
also Boos
dissenting); see
stores,
gonna
your
racist
we’re
break
108 S.Ct.
Barry, 485 U.S.
v.
Supreme
damn neck.” Id. The
Court ac
(“As
(1988)
mat
general
I start protection Brandenburg under Section stitutional under word “threaten” *23 115(a)(1)(B) and, indeed, Be- “incitement.” the district court felt that it includes in the is not defined cause “threaten” did: “ordinary,
statute, its give the word pro- The First Amendment does not meaning.” common See contemporary, speech inciting tect which “is directed to Davila, (discussing 18 at 302 461 F.3d producing or imminent action lawless (internal 876(c)) marks quotation § U.S.C. likely produce and is to incite or such omitted). noted that In Davila we Party action.” See Communist English Dictio- [according to the Oxford Whitcomb, 441, Indiana v. a “denunciation to a
nary, a threat
is
(1975);
S.Ct.
38 L.Ed.2d
[94
635]
him; esp. a decla-
of ill to befall
at 447
Brandenburg,
[89
395 U.S.
S.Ct.
loss,
or of
of hostile determination
ration
clearly
Supreme
The
Court has
1827].
in-
damage
or
to be
pain, punishment,
drawn a
between the mere
distinction
conditionally
in
for or
flicted
retribution
teaching of a resort
to violence from
course; a menace.” The
some
upon
“prepar-
individual is
instances where an
Dictionary, Fourth
Heritage
American
ing group
a
for violent action and steel-
Edition,
word as
ex-
“[a]n
defines the
ing it to such action.” Noto v. United
pain,
to inflict
of an intention
pression
States,
[81
297-98
S.Ct.
evil,
in-
or
injury,
punishment,”
“[a]n
(1961).
1517,
“threaten,” the case law of other argues Defendant that his statements necessity the constitutional draw not meant to incite imminent law- were true threats and incitement line between support, he notes that his lessness. As speech categories as two different computer on his posted comments were tests, I hold that use two distinct would Jersey were New while 115(a)(1)(B) proscribe in does not Section actually Chicago, and that he did true threats. proscribe citement but does urging stand outside of Courthouse advocacy rather than speech Turner’s group supporters rush Court- threat, a true and therefore could not be Judges. house to attack the Court threat. unpersuasive. argument finds this live, has clear, speech in which we say I and do not the world
To be need not The fact constitutionally- geographical no boundaries. speech is "[mjuch Patillo, injure,” but also added that the Fourth Cir- others to 3. In United States v. guilt” say element cuit held that “an essential what we here is dicta.” statute, (4th Cir.1971). is "a under 18 U.S.C. a threat injure ... or incite present intention either to issued his statements on that Defendant in person only rather than blog that an indefinite audi-
served to ensure remarks, had access to his
ence subject
enlarged group of individuals
to incitement. may right. It
The district court
certainly changed true the Internet has “geographical speech. boundaries” of
However, charged un- as Turner was statute, I need not reach
der an incitement
the issue here.
Accordingly, I DISSENT from the ma-
jority’s opinion and would vacate Turner’s proceed-
conviction and remand for further
ings consistent with the above. America,
UNITED STATES
Appellee, GALPIN, Jr.,
James R. Defendant-
Appellant.
Docket No. 11-4808-cr.
United of Appeals, States Court
Second Circuit.
Argued: Nov. 2012.
Decided: June 2013. notes co-conspirator that “carried over note to a test is dicta and that our standard is a third of imminent threat” toward tones broader, 423-24, it nota Majority Op. at is Cir.1990). person. 895 found that the ble that the Kelner Court White, States v. United “unequivocal, an un speech at issue was (4th Cir.2012), an the defendant sent expression[ of in specific ] conditional and Judge comparing recipient email injury.” 534 immediately to inflict tention to Turner’s invocation of Lefkow—similar say, speech That is to when F.2d at 1027. Judge Lefkow this case—and a vic unambiguously directed toward affirmed the threat convic Fourth Circuit tim, need not look to the distinction Majority Op. at 421-22. tion under Watts. communica personal cases, between courts found true In all of these ambiguity face of tions. It is explicitly despite threats the “absence Malik, “highly significant.” distinction is 16 F.3d at threatening language,”