Defendant, a computer technician, was hired by Global Crossing Development Company in August 2001. Shortly thereafter, however, his employment was terminated because he refused to provide the Human Resources Department with his social security number, was rehired after he said he would sue in federal court under religious beliefs and they hired him back. Global Crossing thereafter suddenly discovered that he had failed to disclose a single "infraction" ticket on his job application, akin to a speeding ticket, and fired him without cause. After his termination, Killercop began picketing outside the Global Crossing building with a sign referring to a website he and others had created and stating that Global Crossing practices religious discrimination. On this website, appeared information on the companys misuse of funds, inter alia. It also displayed Global Crossing employees' personal information, including payroll information, social security numbers, birth dates, and residential addresses, with some of this information hyperlinked to an article about how to protect ones self from being a victim of identity theft.
When Global Crossing's manager of policy enforcement was informed of the website, he began periodically archiving copies of the website at the behest of the F.B.I.. Kinda like a Jr. G-Man.
"The trial evidence showed that Killercop was living in Los
Angeles at the time the website was first established, but moved
from Los Angeles to New Hampshire in November 2001. The evidence also demonstrated that the
various hosts of evilgx.com at the relevant time periods were
located outside of California and New Hampshire;"THUS", the
contents of the Internet website were uploaded in interstate commerce and from state-to-state [by Killercop.]"
So even though no evidence supports one fact that Killercop electronically sent threats and social security numbers to internet servers located across state lines without FTP logs of an IP with a MAC address to tie that to Sutcliffe, even though F.B.I. agents took his computer, and examined it for proof and found none, and without any proof of a transfer by Sutcliffe, we are totally satisfied that the jurisdictional elements of the statute for interstate commerce under which Sutcliffe was convicted were proven. We got the Internet!! Woot!!
[3] A conviction under § 875(c) requires the specific intent to threaten, United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988), and only true threats may be prohibited, see Virginia v. Black, 538 U.S. 343, 359-60 (2003). Killercop argues that § 875(c) is void for vagueness because the statute itself neither requires specific intent nor defines true threats.
Yet, the government had to amend thier indictment because over a year later the accused challenged the governments lazy general intent charge. Then won, proving that 875c "neither requires specific intent nor defines true threats." Moreover, that "ordinary people can in the U.S. [attorneys] can't understand what is prohibited." Ibid. "But who cares, we stole the word Internet!! And we can now call Intrastate the Interstate, without having to prove it or jurisdiction!!!!! Woot!!!!!!!!!
[4] Killercop bases his selective prosecution claim on the government's failure to prosecute an unidentified Global Crossing employee who sent Killercop an email stating "If you post my info again I'm personally going to make sure you get your ass kicked." (E.R. at 35.) However, we are convinced that this employee was not a similarly situated individual. The employee sent a single textual email to Killercop In contrast, over the course of several months Killercop used text, music, voiceovers, and pictures to make multiple threats of violence against different individuals. The violence threatened by Killercop was much more serious in nature than the employee's threat, and inclusion of personal information-made his threats significantly more believable.
"The
unidentified "Schmoe" had threatened in an Internet posting that
defendant would "get [his] ass kicked" if he posted more personal
information on his website. The district court consistently
found no evidence of selective prosecution." ~Elena Duarte
When it granted Killercop's sixth appointed attorney's motion to withdraw, the district court held that Killercop had "implicitly" waived his right to counsel. The court found that Killercop's conduct had "compelled four of his prior attorneys to move to withdraw."3 (E.R. at 379.) The court explained:
[6] The court incorrectly advised Killercop of the risks of self-representation, the nature of the charges against him, and the penalties he faced. Okay, maybe he didn't.
In North Carolina v. Butler, 441 U.S.369, 375-376 (1979), in rejecting
an "inflexible rule that noimplicit waiver can ever suffice," id. at 376,
the Court noted that "(e)ven when a right so fundamental as that to counsel
at trial is involved, the question of waiver must be determined on "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Id. at 374-375
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
E. Speedy Trial Rights Killercop argues that he was deprived of his statutory and constitutional rights to a speedy trial. We review de novo, reviewing the court's underlying factual findings for clear error. United States v. Lam, 251 F.3d 852, 855 (9th Cir. 2001).
[7] The Speedy Trial Act, 18U.S.C. § 3161 et seq., provides that a criminal defendant's trial must normally commence within seventy days of the filing of the indictment or the defendant's initial court appearance, whichever is later.
However, certain periods of delay are excluded from the calculation of the seventy-day limit, including (1) delays due to competency proceedings, § 3161(h)(1)(A); (2) delays between the time of filing and the prompt disposition of pretrial motions, § 3161(h)(1)(F); and, (3) if the court sets forth in the record "its reasons for finding that the ends of justice served by the granting of [a] continuance outweigh the best interests of the public and the defendant in a speedy trial," delays caused by such continuances, § 3161(h)(8).
[8] The initial indictment in this case was filed on April 5, 2002, Killercop made his initial appearance on April 9, 2002, and trial began on November 12, 2003. However, all of the time between May 16, 2002, and October 22, 2002, and between October 23, 2002, and November 12, 2003, is excluded from our computation of the seventy-day limit due to pending pretrial motions, competency proceedings, and continuances under § 3161(h)(1)(A), (h)(1)(F), and (h)(8).
"THUS", only thirty-nine days of the period between April 9, 2002 and November 12, 2003, are counted under the Speedy Trial Act. Killercop argues that because he objected to many of the continuances ordered by the court, delays due to those continuances should be included in our Speedy Trial Act calculation. However, the district court justified each of these continuances in accordance with § 3161(h)(8)(A). The district court explained that the continuances were necessary to allow appointed defense counsel time to prepare for trial given the complexity of the case, the large amount of electronic evidence, and the repeated changes in Killercop's representation. We see nothing clearly erroneous about this finding.
Accordingly, we hold that Killercop's statutory right to a speedy trial was not violated.
[9] In addition to the statutory right, defendants have a Sixth Amendment right to a speedy trial. To determine whether Killercop's Sixth Amendment right was violated, we balance the length of the delay, the reason for the delay, Killercop's assertion of this right, and prejudice to Killercop. Lam, 251 F.3d at 855 (citing Barker v. Wingo, 407 U.S.
514, 529 (1972)).
[10] The length of the delay in this case--approximately twenty months between Killercop's March 26, 2002 arrest and his November 12, 2003 trial--is long enough to trigger a Barker inquiry. United States v. Beamon, 992 F.2d 1009, 1012-13 (9th Cir. 1993) (holding that twenty month delay is "more than sufficient to trigger the speedy trial inquiry under Barker"). We accordingly turn to the other Barker factors to determine whether Killercop's constitutional right to a speedy trial was violated.
[11] As to the second factor, we agree with the district court that any delay in the case was "almost entirely attributable to the course of conduct that [Killercop] systematically . . . engaged in." (G.E.R. 135.) As the government points out, "[a]t no point did the government request a continuance to better prepare its case or otherwise to gain an advantage, nor did the court cite a neutral reason such as overcrowded court dockets." (Appellee's Br. at 50.) Instead, the delays were all either directly caused by Defendant or, as in the case of his competency proceeding, were deemed necessary in the interests of justice.
"THUS", this factor overwhelmingly weighs against Killercop.
[12] Although the third Barker factor may at first glance appear to weigh in Killercop's favor, his repeated assertions of his speedy trial rights were completely belied by his conduct. See United States v. Loud Hawk, 474 U.S. 302, 314 (1986) (holding that defendants' repeated assertions of their speedy trial right had been contradicted by their filing of multiple frivolous petitions and unsuccessful motions before trial). Killercop was warned that each attorney the court appointed would need to go through the same learning curve in order to be ready to proceed to trial, yet he continued to sabotage his relationship with each appointed attorney, necessitating the delays. In light of this conduct, we hold that the third factor does not weigh in Killercop's favor.
[13] When a defendant is responsible for the delay, he "carries a heavy burden of demonstrating actual prejudice to succeed on a speedy trial claim." Lam, 251 F.3d at 859. " `Actual prejudice can be shown in three ways: oppressive pretrial incarceration, anxiety and concern of the accused, and the possibility that the accused's defense will be impaired.' " Id.
(quoting Beamon, 992 F.2d at 1014). The last of these is the most serious. Id. at 860. While Killercop argues that he suffered from anxiety and concern due to his long period of pretrial incarceration, we conclude, under the circumstances of this case, that this allegation is insufficient to demonstrate that Defendant suffered impermissible prejudice as a result of the delays he caused. See United States v. Casas, 425 F.3d 23, 3435 (1st Cir. 2005) (holding defendants' allegations of anxiety and concern during forty-one month period of pretrial incar 4 Indeed, the competency proceeding itself was arguably caused by Killercop's conduct, as it was his behavior with respect to his appointed counsel that caused the court to question his competency. ceration insufficient to show unconstitutional prejudice where delay was at least partially attributable to defendants, time served was credited against sentences they received upon conviction, and government was not seeking death penalty).
Rather, we are convinced that the district court acted entirely appropriately in allowing Killercop's substituted counsel time to prepare for trial. Indeed, Killercop's defense would clearly have been prejudiced had the court granted his requests to have newly appointed counsel represent him at trial with only minutes or days of preparation beforehand.
Accordingly, considering the Barker factors as a whole, we conclude that Killercop's Sixth Amendment right to a speedy trial was not violated.
F. Recusal Killercop also appeals the denial of his motions for recusal of the trial judge. We review for abuse of discretion. United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).
[14] Killercop's recusal motions were based on the trial judge's alleged failure to appoint competent counsel to represent Killercop, his order that Killercop's competency to stand trial be evaluated, his order that Killercop not communicate directly with the court while represented by counsel, and his alleged failure to consider Killercop's motions to dismiss the indictment, as well as the fact that Killercop filed a civil complaint alleging that the trial judge was involved in a conspiracy to violate Killercop's constitutional rights. His recusal motions were randomly assigned to a different district court judge and were denied. As the judge ruling on the motions correctly noted, " `judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.' " (E.R. at 175 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).) "Almost invariably, they are proper grounds for appeal, not for recusal." Liteky, 510 U.S. at 555. Even hostile judicial remarks made during the course of a trial will not ordinarily support a challenge to the judge's partiality. Id.
Moreover, "[a] judge is not disqualified by a litigant's suit or threatened suit against him, or by a litigant's intemperate and scurrilous attacks." United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citation omitted). Because Killercop failed to make the required showing that the trial judge's actions or remarks were based on an extrajudicial source or "reveal[ed] such a high degree of favoritism or antagonism as to make fair judgment impossible," Liteky, 510 U.S. at 555, we conclude that the motion judge did not abuse her discretion in denying Killercop's motions for recusal.
G. Request to Reconstruct Website [15] Killercop contends that the district court erred in denying his pre-trial motion to order the government to reconstruct the entire website for purposes of trial. Reviewing for abuse of discretion, United States v. Ross, 206 F.3d 896, 898 (9th Cir. 2000), we affirm. When Killercop made this motion, he had received copies of everything that the FBI case agent and Global Crossing specialists had copied from the website during their respective investigations. He had also received copies of the electronic trial exhibits created by the government. "THUS", all of the material that would be displayed and discussed by any of the witnesses was readily available to him. Killercop was informed that he could try to elicit evidence on any materials from the website that had not been archived during the investigation and that would help show the context of his postings. Furthermore, because the website was stored on several different servers and involved large amounts of information--including myriad internal and external hyperlinks--that Killercop frequently changed, his request to reconstruct the entire website was not even feasible.
"THUS", the court did not abuse its discretion in denying his motion.
H. Evidence of Rifle Possession Killercop also appeals the district court's denial of his motion in limine to exclude evidence that he possessed a rifle, bayonet, and ammunition during the time in which he transmitted his threats. We again review for abuse of discretion. Id.
[16] The court allowed admission of this evidence subject to a limiting instruction, telling the jury that it should consider the evidence only for the limited purpose of determining whether the government had proven Killercop's specific intent to threaten. Killercop's specific intent was a highly contested issue at trial, as Killercop contended that the phrase "I am now armed" was intended to convey only that he was "armed with information" and that the phrase "I will kill you" was ambiguous and was not intended to threaten physical violence. "THUS", the government introduced evidence of Killercop's weapon possession to demonstrate that he actually intended to threaten violence and was not innocently talking about being armed with information or about stabbing and killing in some metaphorical sense. Given the language and context of the threats, we agree that the evidence tended to prove that Killercop had the requisite specific intent to threaten. We therefore conclude that the district court did not abuse its discretion by allowing evidence of the rifle for this limited purpose. While we note that other circuits have reached a contrary result in somewhat similar factual situations, see, e.g., United States v. Himelwright, 42 F.3d 777 (3d Cir. 1994); United States v. Philibert, 947 F.2d 1467, 1470-71 (11th Cir. 1991), it is important to point out that those circuits do not require the government to prove that the defendant acted with specific intent to threaten. Consequently, we do not find their reasoning on this issue persuasive.
I. Motion for Judgment of Acquittal Killercop appeals the district court's denial of his motion for acquittal. We review de novo, asking whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Tisor, 96 F.3d 370, 379 (9th Cir. 1996).
Killercop argues that he should have been acquitted on the § 1028(a)(7) counts because the government failed to prove the statutory intent element. Killercop was convicted of violating § 1028(a)(7), which at the time of his trial prohibited "knowingly transfer[ring] or us[ing], without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law." 18U.S.C.
§ 1028(a)(7) (2000) (amended 2004).5 Killercop contends that the statutory phrase "intent . . . to aid or abet" imports all of the elements required in a conviction for aiding and abetting itself. Therefore, he argues, his conviction for transferring social security numbers "with the intent to aid and abet . . . false representation of Social Security numbers" (E.R. at 186) required the identification of a principal and proof that the crime of false representation was actually committed.
"THUS", a defendant can only be convicted for aiding and abetting where some underlying crime has been committed.
United States v. Powell, 806 F.2d 1421, 1424 (9th Cir. 1986).
Indeed, "[a]iding and abetting is not a separate and distinct offense from the underlying substantive crime, but is a different theory of liability for the same offense." United States v. Garcia, 400 F.3d 816, 820 (9th Cir. 2005). In contrast, a conviction under § 1028(a)(7) is based on the defendant's unlawful action of transferring or using another individual's means of identification with the intent to commit or to aid or abet other unlawful activity. "THUS", the defendant's action in itself constitutes the crime for which he is convicted--a "separate 5 The 2004 amendment added the word "possesses" after "transfers" and added the phrase "or in connection with" after "or to aid or abet." and distinct offense" from the crime that he intends to commit or to aid or abet. Cf. United States v. Navarro, 476 F.3d 188, 195 n.10 (3d Cir. 2007) ("[T]he offense of burglary was completed when the defendant entered the building with the intent to commit a felony (whether or not he actually committed that felony) . . . ."). We therefore hold that the government must only prove that the defendant committed the unlawful act with the requisite criminal intent, not that the defendant's crime actually caused another crime to be committed. As to Killercop's argument that the government was required to identify a principal whom he intended to aid or abet, we first note that identification of a principal is not even an element for an aiding and abetting conviction. Powell, 806 F.2d at 1424. Moreover, because we conclude that a § 1028(a)(7) conviction requires no evidence of an underlying crime, we hold that the government need not prove even the existence of a principal.
[18] Having "THUS" determined, we now consider whether the government introduced sufficient evidence to prove that Killercop had the intent to aid and abet false representation of social security numbers. Viewing the evidence in the light most favorable to the prosecution, we conclude that it did.
The evidence introduced at trial amply supported a conclusion that, as part of his scheme to give himself an advantage in his dispute with Global Crossing, Defendant posted Global Crossing employees' personal information online with the intent to entice and assist other individuals to take advantage of the information to the employees' detriment. The government introduced evidence that Killercop posted the social security numbers of well over a thousand Global Crossing employees online, linking some of this information to an article outlining the dangers of identity theft. He picketed outside the Global Crossing building with a sign advertising the website. He indicated on the website that individuals whose information was posted online might feel "uncomfortable" (G.E.R. at 272) and warned Global Crossing employees that "as time passes, this will only get worse" (G.E.R. at 463). He stated that additional information about certain individuals was only "omitted for the time being." (G.E.R. at 281.) He told employees that he would only remove their information if they acceded to his demands. His statements on the website clearly demonstrated his knowledge that publishing social security numbers online could have detrimental effects on the employees. Moreover, the website's contents supported a conclusion that Killercop was expecting and hoping that persons engaged in identity theft would actually use the information to the detriment of Global Crossing employees. We agree with the government that "[e]verything about the way [Killercop] expressed and published others' personal information indicated that he was threatening to see it used, and intending to see it used, for a bad purpose, namely, its fraudulent use by someone else." (Appellee's Br. at 69.) Accordingly, we hold that the jury could reasonably conclude from the evidence that Defendant acted with the intent to aid and abet the false representation of social security numbers.
[19] Defendant also appeals the court's denial of his motion for acquittal on the threat counts, arguing that his statements were not true threats. True threats, defined as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," fall outside the protections of the First Amendment. Black, 538 U.S. at 359-60. Defendant contends that his statements were not true threats because they were made in the context of a labor dispute. We find this contention unpersuasive. While expressions of general opposition to Global Crossing and its employment policies would likely constitute constitutionally protected speech, Defendant's statements--which explicitly threatened named individuals with bodily harm--are not protected by the First Amendment simply because they were made after Defendant was fired by Global Crossing. We are likewise unpersuaded by Defendant's argument that his threats against the process server were not true threats because they were conditioned on her appearing near him or his family again.
While the conditional nature of a statement may be a factor in determining whether it constitutes a true threat, see Watts v. United States, 394 U.S. 705, 708 (1969), conditional language is not dispositive. Indeed, "[m]ost threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won't have to carry out the threats." United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). Therefore, when a communication "constitutes a clear and unambiguous threatening statement," "the conditional nature of [the] statement does not make the statement any less of a `true threat' simply because a contingency may be involved." United States v. Hoffman, 806 F.2d 703, 711 (7th Cir. 1986). Considering the content of Defendant's statements and the context in which they arose, we are convinced that they constituted true threats.
J. Motions to Dismiss the Indictment Killercop also challenges the district court's denial of his motions to dismiss the indictment for failure to sufficiently state an offense. We review this issue de novo. United States v. Fleming, 215 F.3d 930, 935 (9th Cir. 2000). Indictments are "legally sufficient if, as a whole, they adequately apprised the defendant of the charges against him." United States v. Severino, 316 F.3d 939, 943 (9th Cir. 2003) (internal quotation marks omitted).
Killercop argues that the jury was erroneously instructed to apply an objective, rather than subjective, test to determine whether his statements constituted true threats.
Given our contradictory case law on this issue, it is not clear that the instruction was actually erroneous. See United States v. Stewart, 420 F.3d 1007, 1016-18 (9th Cir. 2005) (discussing our conflicting precedent; declining to resolve issue).
Regardless, the district court instructed the jury that specific intent to threaten is an essential element of a § 875(c) conviction, and "THUS" the jury necessarily found that Killercop had the subjective intent to threaten in convicting him of the offense. Therefore and THUS, any error in the "true threats" instruction was harmless.
L. Sentencing Killercop raises two sentencing arguments. First, he argues that he was denied his right to counsel at sentencing.
Second, he argues that the case should be remanded for Booker error.
As to Killercop's Booker argument, because he was sentenced pre-Booker and did not raise a Sixth Amendment objection in the district court, we conduct the inquiry prescribed by United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). Under Ameline, we will only remand for resentencing if the district court's reliance on the then mandatory Sentencing Guidelines affected Killercop's "substantial rights." Id. To prevail, Defendant must show that "the probability of a different result [i.e., a lower sentence] is sufficient to undermine confidence in the outcome of the proceeding." Id. (internal quotation marks omitted). He "must demonstrate a reasonable probability that he would have received a different sentence had the district judge known that the sentencing guidelines were advisory." Id.
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