[00:00:00] Speaker 02:
We're gonna start with the Agam matter.

[00:00:02] Speaker 02:
Each side will have 10 minutes.

[00:00:04] Speaker 02:
If appellants would like to reserve time for rebuttal, please be aware that you are responsible for keeping track of your own time.

[00:00:11] Speaker 02:
And Ms.

[00:00:12] Speaker 02:
Wagner, you may begin whenever you are ready.

[00:00:19] Speaker 04:
Thank you.

[00:00:19] Speaker 04:
Good morning, Your Honor, and may it please the court.

[00:00:21] Speaker 04:
My name is Anne Wagner, and I'm here on behalf of Marlo Todd Agam.

[00:00:26] Speaker 04:
I'm going to attempt to reserve one minute for rebuttal.

[00:00:29] Speaker 04:
Mr. Egham was convicted of stalking his ex-wife, based solely on letters sent from prison to people other than his ex-wife.

[00:00:40] Speaker 04:
The letters were crass and hateful, but they were not addressed to Ms.

[00:00:44] Speaker 04:
Gray, and they did not ask recipients to contact her.

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They were addressed to a hostile audience, including Mr. Egham's mother, who was extremely ill during this period and thought the pornographic movies he had made with his ex-wife were evil.

[00:00:59] Speaker 04:
There is insufficient evidence in this record that Mr. Egham intended the recipients to forward the letters to his ex-wife, and indeed, none of them exhibited the slightest inclination to do so.

[00:01:13] Speaker 04:
The state has argued that 2254D2 does not apply to sufficiency claims, and most recently in the 28J that was just submitted to this court.

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Mr. Egham did not dispute that as a general matter sufficiency claims are analyzed under D1, but Sarasad did not concern an antecedent

[00:01:36] Speaker 04:
mischaracterization of fact on the way to analyzing that legal question.

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And so it does not contain a holding on the question of whether D2 can apply to a blatant mischaracterization of fact as occurred here.

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Ultimately, this question doesn't necessarily need to be answered by this court because Jackson versus Virginia, the controlling precedent here, does not allow a state court to blatantly mischaracterize facts that aren't in the record in the process of analyzing a sufficiency claim.

[00:02:09] Speaker 02:
So Council, let me ask you about that.

[00:02:11] Speaker 02:
There's a letter wherein Mr. Egem says, you have got Fasano's letter and you've got a decision to make.

[00:02:23] Speaker 02:
You either need to send it or you need to decide that you are going to take care of family business yourself.

[00:02:28] Speaker 02:
Send it to whom?

[00:02:29] Speaker 02:
Ms.

[00:02:30] Speaker 04:
Fasano was Ms.

[00:02:31] Speaker 04:
Gray's divorce attorney and there was an open question in their divorce order whether the intellectual property that was applied to these pornographic videos that they had made, Mr. Egham directed produced them and Ms.

[00:02:45] Speaker 04:
Gray starred in them along with other performers.

[00:02:48] Speaker 04:
whether that property belonged to one or both of them, or just Mr. Agam, the director.

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And so this is a dispute about a legal issue that was open, and thus it falls into a statutory exception.

[00:03:03] Speaker 04:
Because it has to be beyond a reasonable doubt that this was not a legitimate subject of conversation, and it was.

[00:03:12] Speaker 02:
So I'm still asking, who was the letter supposed to be sent to?

[00:03:15] Speaker 02:
Ms.

[00:03:16] Speaker 04:
Fasano is the divorce attorney of Ms.

[00:03:17] Speaker 04:
Gray.

[00:03:19] Speaker 03:
I see that, as you say, they weren't sent directly, but in one case, there's a suggestion that the father intervene with Gray, and then another one asks his mother to inform Gray that he's giving away maps to the house and sexually explicit videos.

[00:03:42] Speaker 03:
My question then is, why would it be irrational under Jackson v. Virginia to conclude that this was tantamount to a threat to her?

[00:03:54] Speaker 04:
Well, the question isn't whether it was a threat.

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The question is whether he intended his mother to forward those letters to Ms.

[00:04:02] Speaker 03:
Gray.

[00:04:02] Speaker 03:
But the realistic, why does he say she should inform Gray

[00:04:10] Speaker 03:
that I'm going to give away maps to the house, that I'm going to release this sexually explicit video.

[00:04:19] Speaker 04:
All of this, all of this subject matter, although it's very, you know, hard to listen to.

[00:04:22] Speaker 03:
Not the subject matter.

[00:04:23] Speaker 03:
It's like, if all he said was, hi mom, check this out,

[00:04:29] Speaker 03:
I might have a different view of the evidence, but that's not what he said.

[00:04:32] Speaker 04:
That particular letter was meant to be sent to Fasano, and that's the divorce attorney.

[00:04:36] Speaker 04:
I understand that.

[00:04:37] Speaker 04:
So it falls into a statutory exception.

[00:04:39] Speaker 04:
We don't even need to think about intent for that letter, because it's a legitimate subject of dispute over an open issue in their divorce agreement.

[00:04:49] Speaker 04:
And the letter to his father, if you read it in context, and I encourage you to read the testimony of Ms.

[00:04:57] Speaker 04:
Gray in full.

[00:04:58] Speaker 04:
It's the state's supplemental excerpts of record.

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The letter to his father is extremely angry that his father has visited Ms.

[00:05:09] Speaker 04:
Gray and their daughter even once.

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I mean, he is, pardon my language, pissed off.

[00:05:14] Speaker 04:
He tells his father he has no effing idea what his father was doing visiting her.

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And so yes, he does put this alternative option before his father, either intervene or stay away.

[00:05:29] Speaker 04:
But in the context of his father really being hostile to this whole subject matter, there's no way that he thought that he was going to take the intervene choice.

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In fact, his father was so upset about this letter that he contacted the prison.

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about it.

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And there was no way that he was going to therefore intervene in the dispute between his son and his daughter.

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I mean, it was a very upsetting subject for him.

[00:05:55] Speaker 01:
My understanding of Jackson is that you take the evidence in the light most favorable to the prosecution.

[00:06:04] Speaker 01:
Correct.

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And ask the question whether any reasonable trier of fact

[00:06:10] Speaker 01:
could conclude that your client did what he's accused of doing?

[00:06:15] Speaker 04:
Beyond a reasonable doubt, yes.

[00:06:18] Speaker 04:
So there need to be two letters that are sent to or intended to be passed to Ms.

[00:06:24] Speaker 04:
Gray.

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A juror would need to find this beyond a reasonable doubt, yeah, based on the light most favorable to the prosecution.

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But here it's very notable that the prosecution at trial never argued and never solicited questions about whether these letters were intended to be passed on by the recipients.

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The theory at trial was different.

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The theory at trial was that the DOC was going to be monitoring these letters before they went out and sending them on to Ms.

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Gray because she was named in them.

[00:06:57] Speaker 04:
I mean, that's not actually what happened either.

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There was, you know, the sheriff had to ask for an investigation to get the DOC to forward the letters, and so it wasn't a standard procedure at all.

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And so on appeal, they just abandoned that theory and came up with a new one about which they had elicited zero evidence.

[00:07:17] Speaker 04:
And the jury almost certainly did not think, because the prosecution had never argued, that the letters were intended to be forwarded by the recipients.

[00:07:27] Speaker 04:
And there was a ton of evidence about how upset the recipients of these letters were that they received them.

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And they felt protective of Ms.

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Gray.

[00:07:38] Speaker 04:
Mr. Agam's father had just visited her and visited the daughter.

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There is no way that Mr. Agam thought that they would be forwarded.

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And the jury never heard evidence about that.

[00:07:50] Speaker 04:
So the other issue that the state actually has waved in this appeal is that a stalking conviction in Washington has to be based on conduct, not speech.

[00:08:04] Speaker 04:
Conduct the and it's notable that this this issue has preserved and exhausted in the habeas process by a pro se statement of additional grounds and it was not briefed by an attorney in the state court.

[00:08:15] Speaker 04:
So the state courts didn't consider this issue, but the the element in the state statute.

[00:08:21] Speaker 04:
is that the conviction has to be based on conduct, and the state courts have interpreted that element to mean that it can't be based solely on pure speech.

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And 100% of the evidence in this case was the content of the letters that Mr. Agum sent to people other than his ex-wife.

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And so the statute itself forbids a conviction on this evidence.

[00:08:46] Speaker 04:
And the state waived this argument, and they have no answer for it now.

[00:08:51] Speaker 04:
So they really cannot, before the court today, assert something different.

[00:08:56] Speaker 04:
I'd like to reserve the remaining time, if I may.

[00:08:59] Speaker 02:
OK, thank you, counsel.

[00:09:01] Speaker 02:
All right, Mr. Sampson.

[00:09:10] Speaker 00:
Thank you, your honor.

[00:09:11] Speaker 00:
May it please the court, John Sampson, assistant attorney general, representing the respondent appellee

[00:09:18] Speaker 00:
The district court correctly denied relief in this case because the state court decision that there was sufficient evidence to support the conviction for stalking was not objectively unreasonable.

[00:09:30] Speaker 00:
Addressing the court's question regarding the letter to the mother, this is excerpts record one, volume one, 84 and 85, the Fasano letter.

[00:09:42] Speaker 00:
Viewing that evidence in the light most favorable to the prosecution, a jury could infer that, in fact, Mr. Igam wanted this delivered not to just the attorney, but to the victim herself.

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And the prosecution under Jackson v. Virginia need not rule out every possible hypothetical, need not

[00:10:07] Speaker 00:
necessarily prove the case that they have presented in their theory.

[00:10:14] Speaker 00:
Under Jackson, what's important is that the evidence in the record would prove the elements of the crime.

[00:10:20] Speaker 00:
So the jury could actually find a different theory on which to convict the defendant, as long as that evidence supports the elements.

[00:10:30] Speaker 00:
And in this case, the letter actually said that the letter was written to be forwarded to Janus.

[00:10:37] Speaker 00:
Not Tifasano.

[00:10:39] Speaker 00:
for Janice's consideration and was nothing more than an offer to settle this.

[00:10:43] Speaker 00:
But then it continues, but this time the offer being tendered with Janice being informed that essentially I could legally sell my movies or give them away.

[00:10:54] Speaker 00:
So a jury could rationally determine looking at that letter that Mr. Egan was wanting his mother to tell the victim I am going to be selling these videos and giving them away to sex offenders who are then going to come to your house.

[00:11:08] Speaker 00:
There's also evidence that Mr. Ingham, his own words, that he actually did give away these videos.

[00:11:16] Speaker 00:
So the argument that it can't be based on pure speech, we have more than just pure speech, we have actual conduct, evidence that he was giving out the videos to people, to sex offenders, to go stalk the victim.

[00:11:30] Speaker 00:
More importantly, the argument regarding pure speech sort of misstates the actual holding of the two cases cited, the Nguyen case and the Bradford case.

[00:11:46] Speaker 00:
Those actually involve text messages, which were the equivalent of the letters sent here.

[00:11:52] Speaker 00:
And in the Bradford case, they were text messages sent to a third party, which were then to be forwarded onto the victim, which is the same case.

[00:12:03] Speaker 00:
Neither Nguyen nor Bradford said that that type of communication was insufficient.

[00:12:11] Speaker 00:
Rather, they were dealing with whether it violated the First Amendment, and they found that it did not violate the First Amendment because it involved conduct, not just pure protected speech.

[00:12:22] Speaker 03:
Is there any evidence that these maps or videos were ever given away?

[00:12:28] Speaker 00:
There is the defendant's own statements that he was doing that.

[00:12:32] Speaker 00:
So it's an omission by a party opponent and communications he wrote saying that he had, in fact, given these away to sex offenders who were being released.

[00:12:43] Speaker 00:
And so therefore, they would be approaching her.

[00:12:46] Speaker 00:
So that jury looking at this evidence could reasonably infer that to be true.

[00:12:52] Speaker 01:
And the question is not access to these videos while incarcerated?

[00:12:58] Speaker 00:
He had, the record may not be entirely clear.

[00:13:03] Speaker 00:
He certainly did not have them in his prison cell, but he claimed to have had access to them and he claimed to have been giving them away.

[00:13:12] Speaker 00:
And that could be done by somebody outside of the prison.

[00:13:15] Speaker 00:
So he could communicate with somebody outside of the prison and then give them away.

[00:13:20] Speaker 00:
But what he was saying, his own statement, so it was a mission, a party opponent, was that I have in fact done this.

[00:13:28] Speaker 01:
So it shows- You characterize that, the government characterizes that as conduct, not speech, correct?

[00:13:36] Speaker 00:
Correct, your honor.

[00:13:37] Speaker 00:
But it's also-

[00:13:39] Speaker 00:
What I'm saying is that the petitioner goes too far in relying on Wynn and Bradford to say pure speech is not enough.

[00:13:46] Speaker 00:
Actually, what the stocking statute prohibits is communication, conduct through communication.

[00:13:53] Speaker 00:
And the statute itself, 9A46110, defines course of conduct to include the sending of an electronic communication.

[00:14:02] Speaker 00:
So the repeated sending of letters, the repeated sending of text messages, those are a course of conduct.

[00:14:15] Speaker 00:
And that's what the state court of appeals here found was that he engaged in conduct.

[00:14:19] Speaker 00:
It wasn't that he just spoke, but that he actually engaged in a course of conduct.

[00:14:24] Speaker 00:
And it was not just the one letter.

[00:14:26] Speaker 00:
There was letters to the pastor where he told the pastor about how

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This one other woman was killed by her husband, and he could have done something that, Egan could have done something, but he did not do anything to stop it.

[00:14:42] Speaker 00:
And now the pastor had a chance to do something to stop it.

[00:14:45] Speaker 00:
And a jury can infer that what he was telling the pastor to do was talk to Janice and tell her to behave.

[00:14:52] Speaker 00:
He also suggested in those letters to the pastor that she get counseling, church counseling, which he would do, and that the pastor mediate the issue.

[00:15:04] Speaker 00:
There was also the letter to the father.

[00:15:06] Speaker 00:
And although petitioner tries to distinguish what he said about mediating the issue, the jury, again, can view this in the light most favorable to the prosecution.

[00:15:16] Speaker 00:
And they could reasonably determine that he, in fact, intended the father to communicate these threats.

[00:15:24] Speaker 00:
So the Court of Appeals found that there was a course of conduct.

[00:15:28] Speaker 00:
They found that it was harassing and that it

[00:15:32] Speaker 00:
caused, could cause, it was intended to cause, and did cause fear by the victim, and those are the only elements that had to be proven.

[00:15:41] Speaker 00:
And the fact that the state court was not unreasonable in making this determination precludes relief.

[00:15:50] Speaker 02:
I do have a question, Council.

[00:15:53] Speaker 02:
So it's my understanding that Mr. Agam is asking the court to view the sufficiency of the evidence claim under the unreasonable determination of the facts clause under section 2254 D2.

[00:16:06] Speaker 02:
But the government is asking us to review it as unreasonable application under 2254 D1.

[00:16:12] Speaker 02:
Why are you right?

[00:16:14] Speaker 00:
That is the correct position, Your Honor, because an appellate court reviewing the record for sufficiency of the evidence is not determining facts.

[00:16:23] Speaker 00:
The Supreme Court has said that the standard of review and its sufficiency of the evidence does not permit fine-grained factual parsing of the evidence.

[00:16:34] Speaker 00:
That is the Coleman versus Johnson case.

[00:16:37] Speaker 00:
So the court is not determining facts as to whether A and B and C happened.

[00:16:43] Speaker 00:
What they're determining is, was the evidence viewed in the light most favorable to the prosecution, was that sufficient for any rational finder or trier fact to find these elements to be proven beyond a reasonable doubt?

[00:16:57] Speaker 00:
That is a legal conclusion.

[00:16:59] Speaker 00:
I would submit that this court is at least twice in the cases we provide in the supplemental citation of authority.

[00:17:07] Speaker 00:
Juan H. and Sarasad has explained that this is a D1 review, not a D2.

[00:17:16] Speaker 00:
And then in the brief, I also, I believe I referred to, maybe I don't refer to, I'll strike that.

[00:17:28] Speaker 00:
The other thing I would say on that point, Your Honor, is even if we were incorrect, and even if D2 did apply, this is still not an unreasonable determination of the facts, because the state court did not misstate any of the record.

[00:17:43] Speaker 00:
The petitioner argues that the court citing the excerpts of record 46 and 47 in volume 1, the state court made a statement that's not supported by the record.

[00:17:55] Speaker 00:
And I would submit that that language that they referred to actually dealt with the separate conviction for harassment, which no longer exists.

[00:18:04] Speaker 00:
It did not deal with the stalking.

[00:18:06] Speaker 00:
So there was no unreasonable determination of facts as to the stalking claim.

[00:18:12] Speaker 00:
Unless the court has further questions, I had asked that this court affirm the district court.

[00:18:16] Speaker 02:
OK.

[00:18:17] Speaker 02:
Thank you, Mr. Sampson.

[00:18:18] Speaker 02:
Thank you.

[00:18:19] Speaker 02:
Ms.

[00:18:19] Speaker 02:
Wagner.

[00:18:22] Speaker 01:
These were actual physical letters, correct?

[00:18:25] Speaker 01:
Correct.

[00:18:27] Speaker 01:
Which he created?

[00:18:29] Speaker 04:
Yes, he wrote.

[00:18:30] Speaker 01:
Prepared, handwrote?

[00:18:33] Speaker 01:
Yes.

[00:18:34] Speaker 01:
And deposited in the mail?

[00:18:36] Speaker 04:
Yes.

[00:18:37] Speaker 01:
Knowing that his mail was subject to review by prison authorities?

[00:18:41] Speaker 04:
Yes, but he believed that the prison authorities.

[00:18:43] Speaker 01:
This stop right there.

[00:18:45] Speaker 01:
Why isn't that conduct?

[00:18:48] Speaker 04:
It could be conduct if the letters were then sent to the victim.

[00:18:52] Speaker 04:
So a repeated sending of something in the mail to the victim could be conduct.

[00:18:58] Speaker 04:
But here, the letters were not sent to the victim.

[00:19:00] Speaker 04:
So it's a completely different situation than in Wynn, where the text messages were sent directly to the victim.

[00:19:07] Speaker 04:
And everybody knew that they were going to receive it.

[00:19:10] Speaker 04:
The Wynn case that my opposing counsel discussed is an as-applied First Amendment challenge to a stalking conviction.

[00:19:21] Speaker 04:
And what it holds is that in that case, there was mixed conduct and speech.

[00:19:25] Speaker 04:
So there were visits to the House in addition to these repeated text messages.

[00:19:29] Speaker 04:
And so that was analyzed in a different, you know, it wasn't a challenge to pure speech as it would be, for example, in Mr. Agum's case, if anybody had brought the claim.

[00:19:39] Speaker 04:
So what the court did in the process of analyzing that as applied challenge was construe the statute to have the element conduct to be defined to be something that cannot be pure speech.

[00:19:52] Speaker 04:
And here it was pure speech.

[00:19:53] Speaker 04:
It was the content of the letters and nothing was actually sent to the victim.

[00:19:58] Speaker 04:
On the DOC point, Mr. Egham knew that the DOC was reviewing the letters, but he did not know that they were going to be forwarded.

[00:20:07] Speaker 04:
So his idea was that the policy required the letters to be not sent if they violated policy.

[00:20:14] Speaker 04:
Thank you.

[00:20:15] Speaker 02:
Thank you, Council.

[00:20:17] Speaker 02:
Okay, this matter is now submitted.

[00:20:21] Speaker 02:
And if we can please have the Wellner Council start making their way up.