LORD DENMAN, (in C.J. O’Connel v. R. ,1884): “Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case.”
Judge Matz was very, very careful to not use the words of the law [No, person of another, and [transmit]] was ever mentioned to the jury.
"The district court must formulate jury instructions so that
they fairly and adequately cover the issues presented, correctly
state the law, and are not misleading." Abromson v. American
Pac. Corp., 114 F.3d 898, 901 (9th Cir. 1997); see also Mockler v.
Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998).
Title 18: 875(c), as presently drafted, applies to pure speech; it
imposes a criminal penalty of up to 5 years of imprisonment,
plus a fine, for the mere utterance or writing of what is, or
may be perceived as, a true statement of fact—without anything
more. 875(c) is so broadly drafted, the government is not required
to prove anything before the district court.
Neither the government or I dispute that the Act "seek[s] to
regulate 'only . . . words.' " Broadrick v. Oklahoma, 413 U.S.
601, 612 (1973) (quoting Gooding v. Wilson, 405 U.S. 518, 520 (1972)).
875(c) therefore concerns me because of its potential for
setting a precedent whereby the government may proscribe
speech solely because it is called true, While lies go free.
Indeed, 875(c) is unconstitutional in that it's nature is
selective, in that only the government can say if it is true.
Like saying you are a witch. You are then left to prove otherwise.
Finding no appropriate way to avoid the First Amendment
question I pose, I hold that the speech proscribed by
875(c) is not sufficiently confined to fit among any
categories of speech previously held to be beyond the
First Amendment's protective sweep.
I apply strict
scrutiny review to 875(c), and hold it unconstitutional
because it is not narrowly tailored enough to achieving a compelling
Federal governmental interest, and it is vague and overbroad,
and because No means No.
The defendant is charged in [Count _______ of] the indictment with transmitting a threat ... In order for the defendant to be found guilty of that charge, the government must prove each of the following beyond a reasonable doubt:
Notice they didn't say anything above about using a facility, or instrumentality of Interstate commerce. So it must be only in Interstate commerce, not about effecting. Which is tons more then plain ol' Intrastate. Too bad the government has neither. Looks like they will have to pull out the "infer" and/or "thus" card, from the botom of the deck. Especially since the law doen't apply to "any threat" as they thus and infer, but specifically to "the person of another," to prevent any person(s) from hearing the threat against the related person from that person, like a baby. It doesn't protect the willing listener from a threat against their own person. Unless the person is a captive, making the threat imminent. And Intranet in the nature.
The jury instruction at issue in this
appeal was Misleading, "Inadequately guided the jury's deliberation," and
"improperly intruded on the Fact finding process."
My crime charged was a "specific intent" crime. However, during my trial the instruction given to the jury was: "if a reasonable person would foresee that the statement [made by the defendant] would be interpreted by [the recipient] as a serious expression of an intention to inflict bodily harm …"
"In Roy we confronted the question of whether 18 U.S.C. Sec. 871 required a showing of specific intent to threaten. Section 871, which makes it unlawful inter alia to "knowingly and willfully" threaten the President of the United States, is a companion section to Secs. 875(c) and 876. After scrutinizing the possible purposes underlying Sec. 871, we concluded that no actual intent to threaten must be shown. We held that culpability could be established by showing that "a reasonable person would foresee that the statement would be interpreted by [the recipient] as a serious expression of an intention to inflict bodily harm upon or to take the life of the President...." Roy, 416 F.2d at 877. We can imagine no clearer description of an objective, general intent showing."
We
review de novo whether a district court's jury instructions omitted or misstated an
element of the charged offense. United States v. Stapleton, 293 F.3d 1111, 1114
(9th Cir. 2002).
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