"I don't see any aiding and abetting allegation in the indictment on the first four counts... What I really should have asked is, what's the
authority...?" ~JUDGE A. HOWARD MATZ
JUDGE A. HOWARD MATZ:
"I don't see any aiding and abetting
allegation in the indictment on the first four counts...
straightforward charge of willfully transmitting the threats[Note to self, left off adjective "true"]. Then leads witness.
Why do "we" need and what would be the basis for
including an aiding and abetting instruction as to that?"
MS. DUARTE: "Your Honor, I usually include aiding and
abetting even if it's not in the indictment. In this case, I
believe the reason would be if, for some reason, someone on the
jury would think that the defendant himself didn't actually
transmit the threats, but they were TRANSMITTED BY VIRTUE of
their being on the Internet, passing from computer to computer,
host to host, in and of itself the fact that he didn't transmit
them physically, but actually, by putting them on there [un-physically??], making
them available and all that, aided and abetted the actual
transmission, that would kind of catch that argument."
JUDGE A. HOWARD MATZ:"I knew that's what you were going to say.
What I really should have asked is, what's the
authority for including the instruction? I think there is a
right that you have as an advocate for your client. That's
something I remember from past practice. But what is the
basis, legally? Can you cite me any authority for including an
aiding and abetting instruction even though the indictment
doesn't specifically allege aiding and abetting?"
MS. DUARTE: "Not off the top of my head. I know that
there are cases that say that aiding and abetting of Section 2
is a component of every indictment whether or not it's
JUDGE A. HOWARD MATZ: "I think you are right, but here is what
I'm going to direct you to do. I'm not going to delete it right now because I think it's a correct way to proceed, and there hasn't even been an objection by the defendant.
However, call up to your office and have them prepare
a bench memo or a trial memo, a two-sentence memo, that can be
filed, so at least the record will be complete, setting forth
whatever authority has been recognized or used to incorporate
that kind of aiding and abetting allegation, even in the
absence of a specific reference in the indictment.
I'm confident it's there because I remember from
decades ago that it used to be "commonly" done, but I want to
make sure, in fairness to the defendant.
In any event,
instruction 23C, currently on page 26 of the set that I've
circulated to the parties this morning, is a correct statement
of what a true threat is..., namely, the reasonable objective person test. Would you like to be heard, Killercop?"
KILLERCOP: "Yes, Your Honor. Thank you.
Your Honor, I think what we have here is -- the issue
is that the Court and other parties are trying to define what
And I'm sure Your Honor is wise enough to know that
that's like trying to define common. There is nothing so
uncommon as common sense.
The issue here is a "threat," not what's "true." That's for the jury to decide.
The case law, which goes back for almost a hundred
years, nobody has been able to define -- the Supreme Court, to
my knowledge, has never defined a "threat.''
This is the standing case law for the Ninth Circuit,
Your Honor: The Kelner case, the Roy -- this is what the
JUDGE A. HOWARD MATZ: Kelner is Second Circuit. I've looked at
these cases. They are old cases and they are not cases that
define "threat in the careful manner, in the more recent
manner, than the Ninth Circuit did in 1999.
But I can't understand -- I want to make sure I do
understand. If you look at 23C in the set that I've circulated, what is your real objection? Are you simply
proposing that the word "true" be deleted, on line 3 and on
KILLERCOP: No. I object to the whole thing.
It's full of adjectives, Your Honor. It's very confusing.
It's like the word "common." It's a reasonable person, true
It goes to -- it doesn't really define who gets to
define what the threat is.
It says, "A statement is a true
threat where a reasonable person would foresee that the
"listener," so that's the speaker test?; is that correct? It's
not the listener test?
Because I know that some circuits
define it as to what the "reasonable listener would interpret
and the other circuits have the "reasonable speaker" [test].
Once we start splitting hairs , using adjectives, as I
tried to demonstrate with Agent Cugno, when he first took the
stand, you get lost on a tangent. You lose sight of the fact as to what is a threat.
I mean, you could say, is it a cute threat? A funny
threat? A false threat? A happy threat? I mean, it never ends.
JUDGE A. HOWARD MATZ: You will be entitled, Killercop, when you deliver
your closing argument, to argue these things. You can, if you
find it helpful to yourself, have this list, or checklist,
available to you to go down. And as long as you do it linked
to the evidence or to reasonable inferences from the evidence,
you can argue all of these points because 23C, as I've proposed
it, would entitle you to do that, because the jury will be
instructed to consider the threats in light of their entire
So if you want to ask them to consider any of
these -- or all of these seven factors, you'll be entitled to
do so. But you are not entitled to have an instruction that
singles those out to the exclusion of others.
UPDATE: 2010, IT WAS THE "OBJECTIVE REASONABLE PERSON LISTENER TEST. WHICH IS A "GENERAL INTENT" CRIME, NOT A "SPECIFIC INTENT" CRIME.
YET KILLERCOP WAS CHARGED WITH 875(C), WHOSE NATURE IS A SPECIFIC INTENT CRIME. YA CAN'T HAVE YER CAKE AND EAT IT TOO.
MEET THE DETECTIVE IN CHARGE OF THE FULL INVESTIGATION.
MEET THE ARRESTING AGENT.
"SPECIAL" AGENT JEFF
MEET THE JUDGE, ALVIN "SPECIAL CASES" MATZ. HE'S NUTZZZ
MEET THE PROSECUTOR, "SPECIAL" LITTLE DEBBIE WONG YANG.
MEET DEB'S ASS-ISTANT, "SPECIAL" ELENA.
THE REST OF THE GANG IS HERE. NOW, ISN'T THAT SPECIAL?
WELL, EVERYONE'S HERE EXCEPT THIS GUY, AND HIS CERTIFICATE REQUIRED BY THE LAW.